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LIBRARY 


UNIVERSITY  OF  CALIFORNIA 


Gl  FT    OF 


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>rice  4O  Cents. 


DECLARATION  °F 
INDEPENDENCE. 

*  We  hold  these  truths  to  be 
self  evident ,-  that  all  men  are 
created  equal;     that  they  are 
endowed    by  their  Creator  with 
certain  inalienable  rights; that 
amontf  these     are  life,  lib- 
erty,  and    the   pursuit    oF 
happiness . 


THECtl 

iTA  : 

TE 
U.S.dRA 


ffe/m 


PUBLISHED    QUARTERLY    FO 


Interoatioial  Religions  Liberty  Association 


PACIFIC  PRESS  -PUBLISHING  Co.,  OAKLAND,  CAL. 


d  Castro  Sts.,  Oakland,  Cal, 
.,  Battle  Creek,  Mich. 
»t.,  Room  7,  Chicago,  111. 

i  St.  j  New  York 

v-  ist.,  Chattapooga,  Tenn. 

th  St;,  Kansas  City,  Mo. 


59  Paternoster  Row,  London,  England 

N.  Fitzroy,  Melbourne,  Austral,  (care  Echo  Pub.  Ct 

28  A  Roeland  St.,  Cape  Town,  S.  Africa 

Weihrweg-  43  Basel,  Switzerland 

Grindleberg  15  A,  Hamburg,  Germany 

268  Crawford  St.,  Toronto,  Ont. 


THE    RELIGIOUS    LIBERTY    LIBRARY,   JULY,   1895. 
5O  Cents  per  Year.  No.    32 


THE 


RIGHTS  EH  PEOPLE 


O  R 


CIVIL  GOVERNMENT 


AND 


RELIGION 


PUBLISHED   FOR    THE 

INTERNATIONAL  RELIGIOUS  LIBERTY  ASSOCIATION, 
BY  PACIFIC  PRESS  PUBLISHING  Co., 

OAKLAND,  CAL. 


Entered  according  to  Act  of  Congress,  in  the  year  1895,  by 

ALONZO  T.  JONES, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


PACIFIC  PRESS  PUBLISHING  CO., 

OAKLAND,  CAL. 

Printers,  Electrotypers,  Binders, 


PREFACE 


IT  is  hoped  that  the  facts  and  thoughts  presented  in  this  little  work 
will  awaken  more  interest  in  the  study  of  the  Constitution  of  the 
United  States,  and  may  lead  to  a  better  understanding  of  men's  rights 
and  liberties  under  it,  than  is  commonly  shown;  and  also  to  a  closer 
study  of  the  relation  that  should  exist  between  civil  government  and 
religion,  according  to  the  words  of  Christ  and  the  American  Consti- 
tution. 

In  order  that  the  work  may  be  as  helpful  as  possible  to  the  people 
generally,  the  authorities  cited  have  been  purposely  such  as  are  in 
the  reach  of  all,  rather  than  the  original  documents  and  manuscripts, 
which  are  accessible  to  the  very,  very  few  at  most.  A.  T.  j. 


160044 


CONTENTS. 

PART  I— CIVIL   GOVERNMENT  AND   RELIGION. 

PACK. 

CHAPTER  I — Christianity  and  the  Roman  Empire.         -  9 

CHAPTER  II — What  Is  Due  to  God,  and  What  to  Caesar.    -        -     20 
CHAPTER  III— The  Powers  That  Be.        -  33 

PART  II — THE  RIGHTS  OF  THE  PEOPLE. 

CHAPTER  I 5T 

CHAPTER  II— How  the  United  States  Became  a  Nation.     -        -  58 

CHAPTER  III— What  Is  the  Nation?  68 

CHAPTER  IV— Who  Made  the  Nation?        -                                  -  76 

CHAPTER  V — Religious  Right  in  the  United  States.  82 

CHAPTER  VI— Religious  Right  Invaded. 109 

CHAPTER  VII — The  People's  Right  of  Appeal.       -  140 

CHAPTER  VIII — National  Precedent  on  Right  of  Appeal.  -        -  152 

CHAPTER  IX— The  Buglers,  the  Miners  and  Sappers.       -        -  180 
CHAPTER  X — The  Sunday-law  Movement  in  the  Fourth  Century, 

and  Its  Parallel  in  the  Nineteenth      -        -        -  211 

CHAPTER  XI— Will  the  People  Assert  and  Maintain  Their  Rights.  238 

CHAPTER  XII — Religious  Right  in  the  States.    -  265 

APPENDIXES. 

APPFNDIX  A    The  Declaration  of  Independence.    -  277 

APPENDIX  B— The  Constitution  of  the  United  States.  -        -    282 

APPENDIX  C — The  Dred  Scott  Decision.          -  292 

APPENDIX  D — The  "Christian  Nation"  Decision.        -  366 

ILLUSTRATIONS. 

Diana  or  Christ? Opposite  page     19 

George  Washington.     ------  61 

Thomas  Jefferson. 90 

James  Madison.     - 97 

Abraham  Lincoln.      -  155 

Andrew  Jackson. 257 

James  G.  Blaine. -  "      270 

(v) 


PART    I. 


CIVIL  GOVERNMENT  AND  RELIGION. 


CIVIL  GOVERNMENT  AND  RELIGION. 


CHAPTER  I. 

CHRISTIANITY   AND    THE   ROMAN   EMPIRE. 

JESUS  CHRIST  came  into  the  world  to  set  men  free,  and  to 
plant  in  their  souls  the  genuine  principle  of  liberty, — liberty 
actuated  by  love, — liberty  too  honorable  to  allow  itself  to  be 
used  as  an  occasion  to  the  flesh,  or  for  a  cloak  of  malicious- 
ness,— liberty  led  by  a  conscience  enlightened  by  the  Spirit  of 
God, — liberty  in  which  man  may  be  free  from  all  men,  yet 
made  so  gentle  by  love  that  he  would  willingly  become  the 
servant  of  all,  in  order  to  bring  them  to  the  enjoyment  of  this 
same  liberty.  This  is  freedom  indeed.  This  is  the  freedom 
which  Christ  gave  to  man;  for  whom  the  Son  makes  free,  is 
free  indeed.  In  giving  to  men  this  freedom,  such  an  infinite 
gift  could  have  no  other  result  than  that  which  Christ  intended, 
namely,  to  bind  them  in  everlasting,  unquestioning,  unswerv- 
ing allegiance  to  him  as  the  royal  benefactor  of  the  race.  He 
thus  reveals  himself  to  men  as  the  highest  good,  and  brings 
them  to  himself  as  the  manifestation  of  that  highest  good,  and 
to  obedience  to  his  will  as  the  perfection  of  conduct.  Jesus 
Christ  was  God  manifest  in  the  flesh.  Thus  God  was  in 
Christ  reconciling  the  world  to  himself,  that  they  might  know 
him,  the  only  true  God,  and  Jesus  Christ  whom  he  sent.  He 
gathered  to  himself  disciples,  instructed  them  in  his  heavenly 
doctrine,  endued  them  with  power  from  on  high,  sent  them 

(9) 


ID  CIVIL    GOVKRXMF.XT    AND    RLLIGtOK. 

forth  into  all  the  world  to  preach  this  gospel  of  freedom  to 
every  creature,  and  to  teach  them  to  observe  all  things  whatso- 
ever he  had  commanded  them. 

The  Roman  Empire  then  filled  the  world,  —  "the  sublim- 
est  incarnation  of  power,  and  a  monument  the  mightiest  of 
greatness  built  by  human  hands,  which  has  upon  this  planet 
been  suffered  to  appear. ' '  That  empire,  proud  of  its  conquests, 
and  exceedingly  jealous  of  its  claims,  asserted  its  right  to  rule 
in  all  things,  human  and  divine.  As  in  those  times  all  gods 
were  viewed  as  national  gods,  and  as  Rome  had  conquered  all 
nations,  it  was  demonstrated  by  this  to  the  Romans  that  their 
gods  were  superior  to  all  others.  And  although  Rome  allowed 
conquered  'nations  to  maintain  the  worship  of  their  national 
gods,  these,  as  well  as  the  conquered  people,  were  yet  consid- 
ered only  as  servants  of  the  Roman  State.  Every  religion, 
therefore,  was  held  subordinate  to  the  religion  of  Rome,  and 
though  "  all  forms  of  religion  might  come  to  Rome  and  take 
their  places  in  its  Pantheon,  they  must  come  as  the  servants 
of  the  State."  The  Roman  religion  itself  was  but  the  servant 
of  the  State;  and  of  all  the  gods  of  Rome  there  were  none  so 
great  as  the  genius  of  Rome  itself.  The  chief  distinction  of 
the  Roman  gods  was  that  they  belonged  to  the  Roman  State. 
Instead  of  the  State  deriving  any  honor  from  the  Roman  gods, 
the  gods  derived  their  principal  dignity  from  the  fact  that  they 
were  the  gods  of  Rome.  This  being  so  with  Rome's  own 
gods,  it  was  counted  by  Rome  an  act  of  exceeding  condescen- 
sion to  recognize  legally  any  foreign  god,  or  the  right  of  any 
Roman  subject  to  worship  any  other  gods  than  those  of  Rome. 
Neander  quotes  Cicero  as  laying  down  a  fundamental  maxim 
of  legislation  as  follows : — 

"No  man  shall  have  for  himself  particular  gods  of  his  own;  no 
man  shall  worship  by  himself  any  new  or  foreign  gods,  unless  they 
are  recognized  by  the  public  la\vs." — Neander's  Church  History,  VoL 
I,  pp.  86,  c<?7,  Torrcfs  translation,  fiosfon%  1852. 


CHRISTIANITY   AND    THE   ROMAN    EMPIRE.  II 

Thus  it  is  seen  that  in  the  Roman  view  the  State  took 
precedence  of  everything.  The  State  was  the  highest  idea  of 
good.  As  expressed  by  Neander: — 

"The  idea  of  the  State  was  the  highest  idea  of  ethics;  and  within 
that  was  included  all  actual  realization  of  the  highest  good;  hence  the 
development  of  all  other  goods  pertaining  to  humanity  was  made 
dependent  on  this." — Id.,  p.  86. 

Man  with  all  that  he  had  was  subordinated  to  the  State;  he 
must  have  no  higher  aim;  he  must  seek  no  higher  good. 
Thus  every  Roman  citizen  was  a  subject,  and  every  Roman 
subject  was  a  slave.  Says  Mommsen: — 

"The  more  distinguished  a  Roman  became,  the  less  was  he  a  free 
man.  The  omnipotence  of  the  law,  the  despotism  of  the  rule,  drove 
him  into  a  narrow  circle  of  thought  and  action,  and  his  credit  and 
influence  depended  on  the  sad  austerity  of  his  life.  The  whole  duty 
of  man,  with  the  humblest  and  greatest  of  the  Romans,  was  to  keep 
his  house  in  order,  and  be  the  obedient  servant  of  the  State." — Quoted 
in  Ten  Great  Religions,  Chapter  VIII,  sec.  4. 

It  will  be  seen  at  once  that  for  any  man  to  profess  the  prin- 
ciples and  the  name  of  Christ,  was  virtually  to  set  himself 
against  the  Roman  Empire;  for  him  to  recognize  God  as 
revealed  in  Jesus  Christ  as  the  highest  good,  was  but  treason 
against  the  Roman  State.  It  would  not  be  looked  upon  by 
Rome  as  anything  else  than  high  treason,  because,  the  Roman 
State  representing  to  the  Roman  the  highest  idea  of  good,  for 
any  man  to  assert  that  there  was  a  higher  good,  and  thus  make 
Rome  itself  subordinate,  would  not  be  looked  upon  in  any 
other  light  by  Roman  pride  than  that  such  an  assertion  was  a 
direct  blow  at  the  dignity  of  Rome,  and  subversive  of  the 
Roman  State.  Consequently  the  Christians  were  not  only 
called  "atheists,"  because  they  denied  the  gods;  but  the  accu- 
sation against  them  before  the  tribunals  was  of  the  crime  oi 
"high  treason,"  because  they  denied  the  right  of  the  State  to 
interfere  with  men's  relations  to  God.  The  accusation  was 


12  CIVIL    GOVERNMENT    AND    RELIGION. 

that  they  were  '  '  irreverent  to  the  Csesars,  and  enemies  of  the 
Caesars  and  of  the  Roman  people.  '  ' 

To  the  Christian,  the  word  of  God  asserted  with  absolute 
authority:  "  Fear  God,  and  keep  his  commandments;  for  this 
is  the  whole  duty  of  man."  Eccl.  12:  13.  To  him,  obedience 
to  this  word  through  faith  in  Christ  was  eternal  life.  This  to 
him  was  the  conduct  which  showed  his  allegiance  to  God  as 
the  highest  good,  —  a  good  as  much  higher  than  that  of  the 
Roman  State  as  the  government  of  God  is  greater  than  was  the 
government  of  Rome,  as  God  is  greater  than  man,  as  heaven 
is  higher  than  earth,  as  eternity  is  more  than  time,  and  as 
eternal  interests  are  of  more  value  than  temporal. 

The  Romans  considered  themselves  not  only  the  greatest 
of  all  nations  and  the  one  to  whom  belonged  power  over  all, 
but  they  prided  themselves  upon  being  the  most  religious  of 
all  nations.  Cicero  commended  the  Romans  as  the  most  reli- 
gious of  all  nations,  because  they  carried  their  religion  into  all 
the  details  of  life. 

"The  Roman  ceremonial  worship  was  very  elaborate  and  minute, 
applying  to  every  part  of  daily  life.  It  consisted  in  sacrifices,  prayers, 
festivals,  and  the  investigations,  by  auguries  and  haruspices,  of  the 
will  of  the  gods  and  the  course  of  future  events.  The  Romans 
accounted  themselves  an  exceedingly  religious  people,  because  their 
religion  was  so  intimately  connected  with  the  affairs  of  home  and 
State.  .  .  .  Thus  religion  everywhere  met  the  public  life  of  the 
Roman  by  its  festivals,  and  laid  an  equal  yoke  on  his  private  life  by 
its  requisition  of  sacrifices,  prayers,  and  auguries.  All  pursuits  must 
be  conducted  according  to  a  system  carefully  laid  down  by  the  Col- 
lege of  Pontiffs.  .  .  .  If  a  man  went  out  to  walk,  there  was  a  form 
to  be  recited;  if  he  mounted  his  chariot,  another."  —  Ten  Great  Reli- 
gions, Chapter  VIIIy  sec.  j. 


The  following  extract  from  Gibbon  will  give  a  clear  view 
of  the  all-pervading  character  of  the  Roman  religious  rites  and 
ceremonies,  and  it  also  shows  how  absolutely  the  profession 
of  the  Christian  religion  made  a  separation  between  the  one 


CHRISTIANITY   AND    THE   ROMAN    EMPIRE.  13 

who  professed   it   and   all  things  pertaining'   to  the  affairs  of 
Rome: — 

"The  religion  of  the  nations  was  not  merely  a  speculative  doctrine 
professed  in  the  schools  or  preached  in  the  temples.  The  innumer- 
able deities  and  rites  of  polytheism  were  closely  interwoven  with 
every  circumstance  of  business  or  pleasure,  of  public  or  of  private 
life;  and  it  seemed  impossible  to  escape  the  observance  of  them, 
without,  at  the  same  time,  renouncing  the  commerce  of  mankind  and 
all  the  offices  and  amusements  of  society.  .  .  .  The  public  spec- 
tacles were  an  essential  part  of  the  cheerful  devotion  of  the  pagans, 
and  the  gods  were  supposed  to  accept,  as  the  most  grateful  offering, 
the  games  that  the  prince  and  people  celebrated  in  honor  of  their 
peculiar  customs.  The  Christian,  who  with  pious  horror  avoided  the 
abomination  of  the  circus  or  the  theater,  found  himself  encompassed 
with  infernal  snares  in  every  convivial  entertainment,  as  often  as  his 
friends,  invoking  the  hospitable  deities,  poured  out  libations  to  each 
others'  happiness.  When  the  bride,  struggling  with  well-affected 
reluctance,  was  forced  in  hymeneal  pomp  over  the  threshold  of  her 
new  habitation,  or  when  the  sad  procession  of  the  dead  slowly  moved 
toward  the  funeral  pile,  the  Christian,  on  these  interesting  occasions, 
was  compelled  to  desert  the  persons  who  were  clearest  to  him,  rather 
than  contract  the  guilt  inherent  to  those  impious  ceremonies.  Every 
art  and  every  trade  that  was  in  the  least  concerned  in  the  framing  or 
adorning  of  idols,  was  polluted  by  the  stain  of  idolatry. 

"  The  dangerous  temptations  which  on  every  side  lurked  in  am- 
bush to  surprise  the  unguarded  believer,  assailed  him  with  redoubled 
violence  on  the  day  of  solemn  festivals.  So  artfully  were  they  framed 
and  disposed  throughout  the  year,  that  superstition  always  wore  the 
appearance  of  pleasure,  and  often  of  virtue.  .  .  .  On  the  days  of 
general  festivity,  it  was  the  custom  of  the  ancients  to  adorn  their 
doors  with  lamps  and  with  branches  of  laurel,  and  to  crown  their 
heads  with  garlands  of  flowers.  This  innocent  and  elegant  practice 
might  have  been  tolerated  as  a  mere  civil  institution.  But  it  most 
unluckily  happened  that  the  doors  were  under  the  protection  of  the 
household  gods,  that  the  laurel  was  sacred  to  the  lover  of  Daphne,  and 
that  garlands  of  flowers,  though  frequently  worn  as  a  symbol  either  of 
joy  or  mourning,  had  been  dedicated  in  their  first  origin  to  the  service 
of  superstition.  The  trembling  Christians  who  were  persuaded  in 
this  instance  to  comply  with  the  fashions  of  their  country  and  the 
commands  of  the  magistrates,  labored  under  the  most  gloomy  appre- 


14  CIVIL,    GOVERNMENT    AND    RELIGION. 

hensions  from  the  reproaches  of  their  own  conscience,  the  censures  of 
the  church,  and  the  denunciations  of  divine  vengeance." — Decline 
and  Fall,  Chapter  XV,  par.  25,  16. 

All  this  clearly  shows  that  to  profess  the  name  of  Christ  a 
person  was  compelled  to  renounce  every  other  relationship  in 
life.  He  could  not  attend  a  wedding  or  a  funeral  of  his  nearest 
relatives,  because  every  ceremony  was  performed  with  reference 
to  the  gods.  He  could  not  attend  the  public  festival,  for  the 
same  reason.  More  than-  this,  he  could  not  escape  by  not 
attending  the  public  festival,  because  on  days  of  public  festivity, 
the  doors  of  the  Jiouses,  and  the  lamps  about  them,  and  the 
heads  of  the  dwellers  therein,  must  all  be  adorned  with  laurel 
and  garlands  of  flowers,  in  honor  of  the  licentious  gods  and 
goddesses  of  Rome.  If  the  Christian  took  part  in  these  services, 
he  paid  honor  to  the  gods  as  did  the  other  heathen.  If  he 
refused  to  do  so,  which  he  must  do  if  he  would  obey  God  and 
honor  Christ,  he  made  himself  conspicuous  before  the  eyes  of 
all  the  people,  all  of  whom  were  intensely  jealous  of  the  respect 
they  thought  due  to  the  gods;  and  also  in  so  doing,  the  Chris- 
tian disobeyed  the  Roman  law,  which  commanded  these  things 
to  be  done.  He  thus  became  subject  to  persecution,  and  that 
meant  death,  because  the  law  said: — 

"Worship  the  gods  in  all  respects  according  to  the  laws  of  your 
country,  and  compel  all  others  to  do  the  same.  But  hate  and  punish 
those  who  would  introduce  anything  whatever  alien  to  our  customs  in 
this  particular." — Neander,  Church  History,  Vol.  7,  Section  First, 
Part  /,  Div.  Ill,  par.  2. 

And  further: — 

"Whoever  introduces  new  religions,  the  tendency  and  character  of 
which  are  unknown,  whereby  the  minds  of  men  may  be  disturbed, 
shall,  if  belonging  to  the  higher  rank,  be  banished;  if  to  the  lower, 
punished  with  death." — Id. 

This  was  the  Roman  law.  Every  Christian,  merely  by  the 
profession  of  Christianity,  severed  himself  from  all  the  gods  of 


CHRISTIANITY   AND   THE   ROMAN    EMPIRE.  15 

Rome,  and  from  everything  that  was  done  in  their  nonor. 
And  everything1  was  done  in  their  honor.  The  great  mass  of 
the  first  Christians  were  from  the  lower  ranks  of  the  people. 
The  law  said  that  if  any  of  the  lower  ranks  introduced  new 
religions,  they  should  be  punished  with  death.  The  Chris- 
tians, introducing  a  new  religion,  and  being  from  the  lower 
ranks,  made  themselves  subject  to  death  whenever  they 
adopted  the  religion  of  Christ.  This  is  why  Paul  and  Peter, 
and  multitudes  of  other  Christians,  suffered  death  for  the  name 
of  Christ.  Such  was  the  Roman  law,  and  when  Rome  put  the 
Christians  to  death,  it  was  not  counted  by  Rome  to  be  perse- 
cution. It  would  not  for  an  instant  be  admitted  that  such  was 
persecution.  It  was  only  enforcing  the  law.  The  State  of 
Rome  was  supreme.  The  State  ruled  in  religious  things. 
Whoever  presumed  to  disobey  the  law  must  suffer  the  penalty; 
all  that  Rome  did,  all  that  it  professed  to  do,  was  simply  to 
enforce  the  law. 

If  the  principle  0*6  admitted  that  the  State  has  the  right  to 
legislate  in  regard  to  religion,  and  to  enforce  religious  observ- 
ances, then  no  blame  can  ever  be  attached  to  the  Rongan 
Empire  for  putting  the  Christians  to  death.  Nor  can  it  be 
admitted  that  such  dealings  with  the  Christians  was  persecu- 
tion. The  enforcement  of  right  laws  can  never  be  persecution, 
however  severely  the  law  may  deal  with  the  offender.  To  hang 
a  murderer  is  not  persecution.  To  hunt  him  down,  even  with 
bloodhounds,  to  bring  him  to  justice,  is  not  persecution.  We 
repeat,  therefore,  that  the  enforcement  of  right  laws  never  can 
be  persecution.  If,  therefore,  religion  or  religious  observances 
be  a  proper  subject  of  legislation  by  civil  government,  then 
there  never  has  been,  and  there  never  can  be,  any  such  thing  as 
religious  persecution.  Because  civil  governments  are  ruled  by 
majorities,  the  religion  of  the  majority  must  of  necessity  be  the 
adopted  religion;  and  if  civil  legislation  in  religious  things  be 
right,  the  majority  may  legislate  in  regard  to  their  own  religion. 


1 6  CIVIL,    GOVERNMENT    AND    RELIGION. 

Such  laws  made  in  such  a  case  must  be  right  laws,  and  the 
enforcement  of  them  therefore  can  never  be  persecution. 

But  all  this,  with  the  authority  and  all  the  claims  of  the 
Roman  Empire,  is  swept  away  by  the  principle  of  Christ,  which 
everyone  then  asserted  who  named  the  name  of  Christ, — that 
civil  government  can  never  of  right  have  anything  to  do  with 
religion  or  religious  observances, — that  religion  is  not  a  sub- 
ject of  legislation  by  any  civil  government, — that  religion, 
religious  profession,  and  religious  observances  must  be  left 
entirely  between  the  individual  and  his  God,  to  worship  as  his 
own  conscience  shall  dictate, — that  to  God  only  is  to  be  ren- 
dered that  which  is  God's,  while  to  Caesar  is  to  be  rendered 
onty  that  which  is  Caesar' s.  This  is  the  principle  that  Christ 
established,  and  which,  by  his  disciples,  he  sent  into  all  the 
world,  and  which  they  asserted  wherever  they  went;  in  behalf 
of  which  they  forfeited  every  earthly  consideration,  endured 
untold  torments,  and  for  which  they  freely  gave  their  lives.  It 
was,  moreover, .  because  of  the  establishment  of  this  principle 
by  Jesus  Christ,  and  the  assertion  of  it  by  hJs  true  disciples, 
thaj^we  have  to-day  the  rights  and  liberties  which  we  enjoy. 
The  following  extract  from  Lecky  is  worthy  to  be  recorded  in 
letters  of  gold,  and  held  in  sorrowful,  but  ever  grateful,  remem- 
brance : — 

"Among  the  authentic  records  of  pagan  persecutions,  there  are 
histories  which  display,  perhaps  more  vividly  than  any  other,  both  the 
depth  of  cruelty  to  which  human  nature  may  sink,  and  the  heroism  of 
resistance  it  may  attain.  .  .  .  The  most  horrible  recorded  instances 
of  torture  were  usually  inflicted,  either  by  the  populace,  or  in  their 
presence  in  the  arena.  We  read  of  Christians  bound  in  chairs  of  red- 
hot  iron,  while  the  stench  of  their  half-consumed  flesh  rose  in  a  suffo- 
cating cloud  to  heaven;  of  others  who  were  torn  to  the  very  bone  by 
shells  or  hooks  of  iron;  of  holy  virgins  given  over  to  the  lusts  of  the 
gladiator,  or  to  the  mercies  of  the  pander;  of  two  hundred  and  twenty- 
seven  converts  sent  on  one  occasion  to  the  mines,  each  with  the  sin- 
ews of  one  leg  severed  with  a  red-hot  iron,  and  with  an  eye  scooped 
from  the  socket;  of  fires  so  slow  that  the  victims  writhed  for 


CHRISTIANITY    AND    THE     ROMAN    EMPIRE.  19 

hours  in  their  agonies;  of  bodies  torn  limb  from  limb,  or  sprinkled 
with  burning  lead;  of  mingled  salt  and  vinegar  poured  over  the  flesh 
that  was  bleeding  from  the  rack;  of  tortures  prolonged  and  varied 
through  entire  days.  For  the  love  of  their  divine  Master,  for  the 
cause  they  believed  to  be  true,  men,  and  even  weak  girls,  endured 
these  things  without  flinching,  when  one  word  would  have  freed  them 
from  their  suffering.  No  opinion  we  may  form  of  the  proceedings  of 
priests  in  a  later  age,  should  impair  the  reverence  with  which  we  bend 
before  the  martyr's  tomb." — History  of  European  Morals,  end  of 
chapter  j. 

All  this  was  endured  by  men  and  women  and  even  weak 
girls,  that  people  in  future  ages  might  be  free.  All  this  was 
endured  in  support  of  the  principle  that  with  religion,  civil 
government  cannot  of  right  have  anything  to  do.  All  this  was 
endured  that  men  might  be  free,  and  that  all  future  ages  might 
know  it  to  be  the  inalienable  right  of  every  soul  to  worship 
God  according  to  the  dictates  of  his  ov»;ii  conscience. 


CHAPTER  II. 


WHAT    IS    DUE    TO    GOD,    AND    WHAT    TO    CAESAR? 

"THEN  went  the  Pharisees,  and  took  counsel  how  they  might 
entangle  him  in  his  talk.  And  they  sent  out  unto  him  their  disciples 
with  the  Herodians,  saying,  Master,  we  know  that  thou  art  true,  and 
teachest  the  way  of  God  in  truth,  neither  carest  thou  for  any  man,  for 
thou  regardest  not  the  person  of  men.  Tell  us  therefore,  What  think- 
est  thou?  Is  it  lawful  to  give  tribute  unto  Caesar,  or  not?  But  Jesus 
perceived  their  wickedness,  and  said,  Why  tempt  ye  me,  ye  hypocrites  ? 
Show  me  the  tribute  money.  And  they  brought  unto  him  a  penny. 
And  he  saith  unto  them,  Whose  is  this  image  and  superscription? 
They  say  unto  him,  Caesar's.  Then  saith  he  unto  them,  Render 
therefore  unto  Caesar  the  things  which  are  Caesar's;  and  unto  God  the 
things  that  are  God's." 

In  these  words  Christ  has  established  a  clear  distinction 
between  Caesar  and  God, — between  that  which  is  Caesar's  and 
that  which  is  God's;  that  is,  between  the  civil  and  the  religious 
power,  and  between  what  we  owe  to  the  civil  power  and  what 
we  owe  to  the  religious  power.  That  which  is  Caesar's  is  to 
be  rendered  to  Caesar;  that  which  is  God's  is  to  be  ren- 
dered to  God  alone.  With  that  which  is  God's,  Caesar  can 
have  nothing  to  do.  To  say  that  we  are  to  render  to  Caesar 
that  which  is  God's,  or  that  we  are  to  render  to  God,  by  Caesar, 
that  which  is  God's,  is  to  pervert  the  words  of  Christ,  and 
make  them  meaningless.  Such  an  interpretation  would  be 
but  to  entangle  him  in  his  talk, — the  very  thing  that  the 
Pharisees  sought  to  do. 

As  the  word  "Caesar"  refers  to  civil  government,  it  is  appar- 
ent at  once  that  the  duties  which  we  owe  to  Caesar  are  civil 
(20) 


WHAT    IS    DUE    TO    GOL),    AND    WHAT    TO    C.ESAR  ?  21 

duties,  while  the  duties  which  we  owe  to  God  are  wholly  moral 
or  religious  duties.     Webster's  definition  of  religion  is, — 

''The  recognition  of  God  as  an  object  of  worship,  love,  and  obe- 
dience." 

Another  definition,  equally  good,  is  as  follows: — 
"Man's  personal  relation  of  faith  and  obedience  to  God." 

Yet  again,  the  American  definition  is: — 

"The  duty  which  we  owe  to  our  Creator,  and  the  manner  of  dis- 
charging it." 

It  is  evident,  therefore,  that  religion  and  religious  duties 
pertain  solely  to  God;  and  as  that  which  is  God's  is  to  be  ren- 
dered to  him  and  not  to  Caesar,  it  follows  inevitably  that,  accord- 
ing to  the  words  of  Christ,  civil  government  can  never  of  right 
have  anything  to  do  with  religion, — with  a  man's  personal 
relation  of  faith  and  obedience  to  God. 

Another  definition  which  may  help  in  making  the  distinc- 
tion appear,  is  that  of  morality,  as  follows: — 

"Morality:  The  relation  of  conformity  or  nonconformity  to  the 
true  moral  standard  or  rule.  .  .  .  The  conformity  of  an  act  to  the 
divine  law."  ( 

As  morality,  therefore,  is  the  conformity  of  an  act  to  the 
divine  law,  it  is  plain  that  morality  also  pertains  solely  to  God, 
and  with  that,  civil  government  can  have  nothing  to  do.  This 
may  appear  at  first  sight  to  be  an  extreme  position,  if  not  a 
false  one;  but  it  is  not.  It  is  the  correct  position,  as  we  think 
anyone  can  see  who  will  give  the  subject  a  little  careful  thought. 
The  first  part  of  the  definition  already  given,  says  that  moral- 
ity is  '  'the  relation  of  conformity  or  nonconformity  to  the  true 
moral  standard  or  rule, ' '  and  the  latter  part  of  the  definition 
shows  that  this  true  moral  standard  is  the  divine  law.  Again; 
.moral  law  is  defined  as — 


22  CIVIL    GOVERNMENT    AND    RELIGION. 

"The  will  of  God,  as  the  supreme  moral  ruler,  concerning  the 
character  and  conduct  of  all  responsible  beings;  ttie  rule  of  action  as 
obligatory  on  the  conscience  or  moral  nature."  ''The  moral  law  is 
summarily  contained  in  the  decalogue,  written  by  the  finger  of  God 
on  two  tables  of  stone,  and  delivered  to  Moses  on  Mount  Sinai." 

These  definitions  are  evidently  according  to  Scripture. 
The  Scriptures  show  that  the  ten  commandments  are  the  law 
of  God;  that  they  express  the  will  of  God;  that  they  pertain 
to  the  conscience,  and  take  cognizance  of  the  thoughts  and 
intents  of  the  heart;  and  that  obedience  to  these  command- 
ments is  the  duty  that  man  owes  to  God.  Says  the  Scrip- 
ture:— 

"Fear  God,  and  keep  his  commandments;  for  this  is  the  whole 
duty  of  man. "  Eccl.  12:13. 

And  the  Saviour  says:— 

"Ye  have  heard  that  it  was  said  by  them  of  old  time,  Thou  shall 
not  kill;  and  whosoever  shall  kill  shall  be  in  danger  of  the  judgment; 
but  I  say  unto  you,  That  whosoever  is  angry  with  his  brother  without  a 
cause  shall  be  in  danger  of  the  judgment;  and  whosoever  shall  say 
to  his  brother,  Raca  ["vain  fellow,"  margin],  shall  be  in  danger  of  the 
council;  but  whosoever  shall  say,  Thou  fool,  shall  be  in  danger  of 
hell  fire."  Matt.  5:21,  22. 

The  apostle  John,  referring  to  the  same  thing,  says: — 
"Whosoever  hateth  his  brother  is  a  murderer."  i  John  3: 15. 
Again,  the  Saviour  says: — 

"Ye  have  heard  that  it  was  said  by  them  of  old  time,  Thou  shalt 
not  commit  adultery;  but  I  say  unto  you,  that  whosoever  looketh  on  a 
woman  to  lust  after  her  hath  committed  adultery  with  her  already  in 
his  heart."  Matt.  5:27,  28. 

Other  illustrations  might  be  given,  but  these  are  sufficient 
to  show  that  obedience  to  the  moral  law  is  morality;  that  it 
pertains  to  the  thoughts  and  the  intents  of  the  heart,  and 
therefore,  in  the  very  nature  of  the  case,  lies  beyond  the  reach 


WHAT    IS    DUE    TO    (iOl),    AND    WHAT    TO    (VKSAR  ?  23 

or  control  of  the  civil  power.  To  hate,  is  murder;  to  covet, 
is  idolatry;  to  think  impurely  of  a  woman,  is  adultery; — these 
are  all  equally  immoral,  and  violations  of  the  moral  law,  but 
no  civil  government  seeks  to  punish  for  them.  A  man  may 
hate  his  neighbor  all  his  life;  he  may  covet  everything  on 
earth;  he  may  think  impurely  of  every  woman  that  he  sees,— 
he  may  keep  it  up  all  his  days;  but  so  long  as  these  things  are 
confined  to  his  thought,  the  civil  power  cannot  touch  him.  It 
would  be  difficult  to  conceive  of  a  more  immoral  person  than 
such  a  man  would  be;  yet  the  State  cannot  punish  him.  It 
does  not  attempt  to  punish  him.  This  demonstrates  again  that 
with  morality  or  immorality  the  State  can  have  nothing  to  do. 

But  let  us  carry  this  further.  Only  let  that  man's  hatred 
lead  him,  either  by  word  or  sign,  to  attempt  an  injury  to  his 
neighbor,  and  the  State  will  punish  him;  only  let  his  covetous- 
ness  lead  him  to  lay  hands  on  what  is  not  his  own,  in  an  at- 
tempt to  steal,  and  the  State  will  punish  him;  only  let  his 
impure  thought  lead  him  to  attempt  violence  to  any  woman, 
and  the  State  will  punish  him.  Yet  bear  in  mind  that  even 
then  the  State  does  not  punish  him  for  his  immorality,  but 
for  his  incivility.  The  immorality  lies  in  the  heart,  and  can 
be  measured  by  God  only.  The  State  punishes  no  man 
because  he  is  immoral.  If  it  did,  it  would  have  to  pun- 
ish as  a  murderer  the  man  who  hates  another,  because, 
according  to  the  true  standard  of  morality,  hatred  is  murder. 
Therefore  it  is  clear  that  in  fact  the  State  punishes  no  man 
because  he  is  immoral,  but  because  he  is  uncivil.  It  cannot 
punish  immorality;  it  must  punish  incivility. 

This  distinction  is  shown  in  the  very  term  by  which  is  desig- 
nated State  or  national  government;  it  is  called  civil  govern- 
ment. No  person  ever  thinks  of  calling  it  moral  government. 
The  government  of  God  is  the  only  moral  government. 
God  is  the  only  moral  governor.  The  law  of  God  is  the 
only  moral  law.  To  God  alone  pertains  the  punishment 


24  CIVIL    GOVERNMENT    AND    RELIGION. 

of  immorality,  which  is  the  transgression  of  the  moral  law. 
Governments  of  men  are  civil  governments,  not  moral.  Gov- 
ernors of  men  are  civil  governors,  not  moral.  The  laws  of 
States  and  nations  are  civil  laws,  not  moral.  To  the  authori- 
ties of  civil  government  pertains  the  punishment  of  incivility, 
that  is,  the  transgression  of  civil  law.  It  is  not  theirs  to  pun- 
ish immorality.  That  pertains  solely  to  the  Author  of  the 
moral  law  and  of  the  moral  sense,  who  is  the  sole  judge  of 
man's  moral  relation.  All  this  must  be  manifest  to  every  one 
who  will  think  fairly  upon  the  subject,  and  it  is  confirmed  by 
the  definition  of  the  word  "civil,"  which  is  as  follows:— 

"Civil:  Pertaining  to  a  city  or  State,  or  to  a  citizen  in  his  relations 
to  his  fellow-citizens,  or  to  the  State." 

By  all  these  things  it  is  made  clear  that  we  owe  to  Caesar 
(civil  government)  only  that  which  is  civil,  and  that  we  owe 
to  God  that  which  is  moral  or  religious.  Other  definitions 
show  the  same  thing.  For  instance,  sin  as  defined  by  Web- 
ster is  "any  violation  of  God's  will;"  and  as  defined  by  the 
Scriptures,  "is  the  transgression  of  the  law."  That  the  law 
here  referred  to  is  the  moral  law — the  ten  commandments — >is 
shown  by  Rom.  7:  7: — 

"I  had  not  known  sin,  but  by  the  law;  for  I  had  not  known  lust, 
except  the  law  had  said,  Thou  shalt  not  covet." 

Thus  the  Scriptures  show  that  sin  is  a  transgression  of  the 
law  which  says,  "Thou  shalt  not  covet,"  and  that  is  the  moral 
law. 

But  crime  is  an  offense  against  the  laws  of  the  State.  The 
definition  is  as  follows: — 

"Crime  is  strictly  a  violation  of  law  either  human  or  divine;  but  in 
present  usage  the  term  is  commonly  applied  to  actions  contrary  to  the 
laws  of  the  State." 

Thus  civil  statutes  define  crime,  and  deal  with  crime,  but 


WHAT    IS    DTI-:    TO    <;Ol>,    A  XL)    WHAT    TO    C/ESAR  ?  25 

not  with  sin;  while  the  divine  statutes  define  sin,  and  deal  with 
sin,  but  not  with  crime. 

As  God  is  the  only  moral  governor,  as  his  is  the  only  moral 
government,  as  his  law  is  the  only  moral  law,  and  as  it  per 
tains  to  him  alone  to  punish  immorality,  so  likewise  the  promo- 
tion of  morality  pertains  to  him  alone.  Morality  is  conformity 
to  the  law  of  God;  it  is  obedience  to  God.  But  obedience  to 
God  must  spring  from  the  heart  in  sincerity  and  truth.  This 
it  must  do,  or  it  is  not  obedience;  for,  as  we  have  proved  by 
the  word  of  God,  the  law  of  God  takes  cognizance  of  the 
thoughts  and  intents  of  the  heart.  But  "all  have  sinned,  and 
come  short  of  the  glory  of  God. ' '  By  transgression,  all  men 
have  made  themselves  immoral.  '  'Therefore  by  the  deeds  of 
the  law  [by  obedience]  there  shall  no  flesh  be  justified  [accounted 
righteous,  or  made  moral]  in  his  sight. ' '  Rom.  3 :  20.  As 
all  men  have,  by  transgression  of  the  law  of  God,  made  them- 
selves immoral,  therefore  no  man  can,  by  obedience  to  the  law, 
become  moral,  because  it  is  that  very  law  which  declares  him 
to  be  immoral.  The  demands,  therefore,  of  the  moral  law,  must 
be  satisfied  before  he  can  ever  be  accepted  as  moral  by  either 
the  law  or  its  Author.  But  the  demands  of  the  moral  law  can 
never  be  satisfied  by  an  immoral  person;  and  this  is  just  what 
every  person  has  made  himself  by  transgression.  Therefore  it  is 
certain  that  men  can  never  become  moral  by  the  moral  law. 

From  this  it  is  equally  certain  that  if  ever  men  shall  be 
made  moral,  it  must  be  by  the  Author  and  Source  of  all  moral- 
ity. And  this  is  just  the  provision  which  God  has  made. 
For  "now  the  righteousness  [the  morality]  of  God  without 
the  law  is  manifested,  being  witnessed  by  the  law  and  the 
prophets;  even  the  righteousness  [the  morality]  of  God  which 
is  by  faith  of  Jesus  Christ  unto  all  and  upon  all  them  that  be- 
lieve; for  there  is  no  difference;  for  all  have  sinned  [made 
themselves  immoral],  and  come  short  of  the  glory  of  God." 
Rom.  3:21-23.  It  is  by  the  morality  of  Christ  alone  that 


26  CIVIL    GOVERNMENT    AND    RELIGION. 

men  can  be  made  moral.  And  this  morality  of  Christ  is  the 
morality  of  God,  which  is  imputed  to  us  for  Christ's  sake;  and 
we  receive  it  by  faith  in  Him  who  is  both  the  author  and  finisher 
of  faith.  Then  by  the  Spirit  of  God  the  moral  law  is  written 
anew  in  the  heart  and  in  the  mind,  sanctifying  the  soul  unto 
obedience — unto  morality.  Thus,  and  thus  alone,  can  men 
ever  attain  to  morality;  and  that  morality  is  the  morality  of 
God  which  is  by  faith  of  Jesus  Christ;  and  there  is  no  other  in 
this  world.  Therefore,  as  morality  springs  from  God,  and  is 
planted  in  the  heart  by  the  Spirit  of  God,  through  faith  in  the 
Son  of  God,  it  is  demonstrated  by  proofs  of  Holy  Writ  itself, 
that  to  (iod  alone  pertains  the  promotion  of  morality. 

God,  then,  being  the  sole  promoter  of  morality,  through 
what  instrumentality  does  he  work  to  promote  morality  in  the 
world  ?  What  body  has  he  made  the  conservator  of  morality  in 
the  world  ?  the  church  or  the  civil  power,  which  ? — The  church, 
and  the  church  alone.  It  is  "the  church  of  the  living  God." 
It  is  "the  pillar  and  ground  of  the  truth."  It  was  to  the 
church  that  he  said,  "Go  ye  into  all  the  world,  and  preach  the 
gospel  to  every  creature;"  "and,  lo,  I  am  with  you  alway, 
even  unto  the  end  of  the  world."  It  is  by  the  church,  through 
the  preaching  of  Jesus  Christ,  that  the  gospel  is  "made  known 
to  all  nations  for  the  obedience  of  faith. ' '  There  is  no  obedience 
but  the  obedience  of  faith;  there  is  no  morality  but  the  morality 
of  faith.  Therefore  it  is  proved  that  to  the  church,  and  not  to 
the  State,  is  committed  the  conservation  of  morality  in  the 
world.  This  at  once  settles  the  question  as  to  whether  the' 
State  shall  teach  morality  or  religion.  The  .State  cannot  leach 
morality  or  religion.  It  has  not  the  credentials  for  it.  The 
Spirit  of  God  and  the  gospel  of  Christ  arc-  both  essential  t;>  the 
teaching  of  morality,  and  neither  of  these  is  committed  to  the 
State,  but  both  to  the  church. 

But  though   this'  work  be  committed   to  the  church,  even 
then  there  is  not  committed  to  the  church  the  prerogative  either 


WHAT    IS    DUE    TO    GOD,   AND    WHAT    TO    C/ESAR  ?  27 

to  reward  morality  or  to  punish  immorality.  She  beseeches, 
she  entreats,  she  persuades  men  to  be  reconciled  to  God;  she 
trains  them  in  the  principles  and  the  practice  of  morality.  It 
is  hers  by  moral  suasion  or  spiritual  censures  to  preserve  the 
purity  and  discipline  of  her  membership.  But  hers  it  is  not 
either  to  reward  morality  or  to  punish  immorality.  This  per- 
tains to  God  alone,  because,  whether  it  be  morality  or  immoral- 
ity, it  springs  from  the  secret  counsels  of  the  heart;  and  as  God 
alone  knows  the  heart,  he  alone  can  measure  either  the  merit 
or  the  guilt  involved  in  any  question  of  morals. 

By  this  it  is  demonstrated  that  to  no  man,  to  no  assembly 
or  organization  of  men,  does  there  belong  any  right  whatever 
to  punish  immorality.  Whoever  attempts  it,  usurps  the  pre- 
rogative of  God.  The  Inquisition  is  the  inevitable  logic  of  any 
assembly  of  men  to  punish  immorality,  because  to  punish  im- 
morality it  is  necessary  in  some  way  to  get  at  the  thoughts  and 
intents  of  the  heart.  The  Papacy,  asserting  the  right  to  compel 
men  to  be  moral,  and  to  punish  them  for  immorality,  had  the 
cruel  courage  to  carry  the  evil  principle  to  its  logical  conse- 
quence. In  carrying  out  the  principle,  it  was  found  to  be 
essential  to  get  at  the  secrets  of  men's  hearts;  and  it  was  found 
that  the  diligent  application  of  torture  would  wring  from  men, 
in  many  cases,  a  full  confession  of  the  most  secret  counsels  of 
their  hearts.  Hence  the  Inquisition  was  established  as  the 
means  best  adapted  to  secure  the  desired  end.  So  long  as 
men  grant  the  proposition  that  it  is  within  the  province  of  civil 
government  to  enforce  morality,  it  is  to  very  little  purpose  that 
they  condemn  the  Inquisition;  for  that  tribunal  is  only  the 
logical  result  of  the  proposition. 

By  all  these  evidences  is  established  the  plain,  common- 
sense  principle  that  to  civil  government  pertains  only  that  \vhirh 
the  term  itself  implies, — that  which  is  civil.  The  purpose  of 
civil  government  is  civil,  and  not  moral.  Its  function  is  to 
preserve  order  in  society,  and  to  cause  all  its  subjects  to  rest  in 


28  CIVIL    GOVERNMENT    AND    RELIGION. 

assured  safety,  by  guarding'  them  against  all  incivility.  Moral- 
ity belongs  to  God;  civility  to  the  State.  Morality  must  be 
rendered  to  God;  civility,  to  the  State.  "Render  therefore 
unto  Caesar  the  things  which  are  Caesar's;  and  unto  God  the 
things  that  are  God's." 

But  it  may  be  asked,  Does  not  the  civil  power  enforce  the 
observance  of  the  commandments  of  God,  which  say,  Thou 
shalt  not  steal,  Thou  shalt  not  kill,  Thou  shalt  not  commit  adul- 
tery, and,  Thou  shalt  not  bear  false  witness  ?  Does  not  the  civil 
power  punish  the  violation  of  these  commandments  of  God  ? 
Answer — The  civil  power  does  not  enforce  these,  nor  does  it 
punish  the  violation  of  them,  >as  commandments  of  God.  The 
State  does  forbid  murder  and  theft  and  perjury,  and  some 
States  forbid  adultery,  but  not  as  commandments  of  God. 
From  time  immemorial,  governments  that  knew  nothing  about 
God,  have  forbidden  these  things.  If  the  civil  power  attempted 
to  enforce  these  as  the  commandments  of  God,  it  would  have 
to  punish  as  a  murderer  the  man  who  hates  another;  it  would 
have  to  punish  as  a  perjurer  the  man  who  raises  a  false  report; 
it  would  have  to  punish  as  an  adulterer  the  person  who  thinks 
impurely;  it  would  have  to  punish  as  a  thief  the  man  who 
wishes  to  cheat  his  neighbor;  because  all  these  things  are  viola- 
tions of  the  commandments  of  God.  Therefore  if  the  State  is 
to  enforce  these  things  as  the  commandments  of  God,  it  will 
have  to  punish  the  thoughts  and  intents  of  the  heart;  but  this 
is  not  within  the  province  of  any  earthly  power,  and  it  is  clear 
that  any  earthly  power  that  should  attempt  it,  would  thereby 
simply  put  itself  in  the  place  of  God,  and  usurp  his  prerogative. 

More  than  this,  such  an  effort  would  be  an  attempt  to  pun- 

1  There  is  an  accommodated  sense  in  which  the  word  "morality'1  is  used,  in  which  it 
is  made  to  refer  only  to  men's  relations  to  their  fellow-men;  and  with  reference  to  this 
view  of  morality,  it  is  sometimes  said  that  the  civil  power  is  to  enforce  morality  upon 
a  civil  basis.  But  morality  on  a  civil  basis  is  only  civility,  and  the  enforcement  of  moral- 
ity upon  a  civil  hasis  is  the  enforcem-nt  of  civility,  and  nothing  else.  Without  the 
Inquisition  it  is  impossible  for  civil  government  ever  to  carry  its  jurisdiction  beyond 
civil  things,  or  to  enforce  anything  but  civility. 


WHAT    IS    DCK    TO    GOD,    AND    WHAT    TO    (\KSAR?  2g 

Lsh  sin,  because."  transgression  of  the  law  of  God  is  sin;  but  sins 
will  be  forgiven  upon  repentance,  and  God  does  not  punish  the 
sinner  for  the  violation  of  his  law,  when  his  sins  are  forgiven. 
Now  if  the  civil  power  undertakes  to  enforce  the  observance  of 
the  law  of  God,  it  cannot  justly  enforce  that  law  upon  the  trans- 
gressor whom  God  has  forgiven.  For  instance,  suppose  a 
man  steals  twenty  dollars  from  his  neighbor,  and  is  arrested, 
prosecuted,  and  found  guilty.  But  suppose  that  between  the 
time  that  he  is  found  guilty  and  the  time  when  sentence  is  to  be 
passed,  the  man  repents,  and  is  forgiven  by  the  Lord.  Now 
he  is  counted  by  the  Lord  as  though  he  never  had  violated  the 
law  of  God.  The  commandment  of  God  does  not  stand  against 
him  for  that  transgression.  And  as  it  is  the  law  of  God  that 
the  civil  law  started  out  to  enforce,  the  civil  power  also  must 
forgive  him,  count  him  innocent,  and  let  him  go  free.  More 
than  this,  the  statute  of  God  says:  "If  thy  brother  trespass 
against  thee,  rebuke  him;  and  if  he  repent,  forgive  him.  And 
if  he  trespass  against  thee  seven  times  in  a  day,  and  seven 
times  in  a  day  turn  again  to  thee,  saying,  I  repent;  thou  shalt 
forgive  him. ' '  If  civil  government  is  to  enforce  the  law  of  God, 
when  a  man  steals,  or  commits  perjury,  or  any  form  of  violence, 
and  is  arrested,  if  he  says,  "I  repent,"  he  must  be  forgiven;  if 
he  does  it  again,  is  again  arrested,  and  again  says,  "I  repent," 
he  must  be  forgiven ;  and  if  he  commits  it  seven  times  in  a  day, 
and  seven  times  in  a  day  says,  "I  repent,"  he  must  be  for- 
given. It  will  be  seen  at  once  that  any  such  system  would  be 
utterly  destructive  of  civil  government;  and  this  only  demon- 
strates conclusively  that  no  civil  government  can  ever  of  right 
have  anything  to  do  with  the  enforcement  of  the  command- 
ments of  God  as  such,  or  with  making  the  Bible  its  code  of 
laws. 

God's  government,  can  be  sustained  by  the  forgiveness  of 
the  sinner  to  the  uttermost,  because  by  the  sacrifice  of  Christ 
he  has  made  provision  '  'to  save  them  to  the  uttermost  that 


30  CIVIL    COYLRXMKXT    AND    RELIGION. 

come  unto  God  by  him;  seeing-  he  ever  liveth  to  make  inter- 
cession for  them;"  but  in  civil  government,  if  a  man  steals,  or 
commits  any  other  crime,  and  is  apprehended  and  found  guilty, 
it  has  nothing  to  do  with  the  case  if  the  Lord  does  forgive  him; 
he  must  be  punished. 

The  following  remarks  of  Prof.  W.  T.  Harris,  National 
Commissioner  of  Education,  are  worthy  of  careful  consideration 
in  this  connection: — 

"A  crime,  or  breach  of  justice,  is  a  deed  of  the  individual,  which 
the  State,  by  its  judicial  acts,  returns  on  the  individual.  The  State 
furnishes  a  measure  for  crime,  and  punishes  criminals  according  to 
their  deserts.  The  judicial  mind  is  a  measuring  mind,  a  retributive 
mind,  because  trained  in  the  forms  of  justice,  which  sees  to  it  that  every 
man's  deeds  shall  be  returned  to  him,  to  bless  him  or  to  curse  him 
with  pain.  Now,  a  sin  is  a  breach  of  the  law  of  holiness,  a  lapse  out 
of  the  likeness  to  the  divine  form,  and  as  such  it  utterly  refuses  to  be 
measured.  It  is  infinite  death  to  lapse  out  of  the.  form  of  the  divine- 
A  sin  cannot  be  atoned  for  by  any  finite  punishment,  but  only  (as  rev- 
elation teaches)  by  a  divine  act  of  sacrifice.  .  .  .  It  would  destroy 
the  State  to  attempt  to  treat  crimes  as  sins,  and  to  forgive  them  in 
case  of  repentance.  It  would  impose  on  the  judiciary  the  business  of 
going  behind  the  overt  act  to  the  disposition  or  frame  of  mind  within 
the  depth  of  personality.  But  so  long  as  the  deed  is  not  uttered  in 
the  act,  it  does  not  belong  to  society,  but  only  to  the  individual  and  to 
God.  No  human  institution  can  go  behind  the  overt  act,  and  attempt 
to  deal  absolutely  with  the  substance  of  man's  spiritual  freedom. 
.  .  .  Sin  and  crime  must  not  be  confounded,  nor  must  the  same 
deed  be  counted  as  crime  and  sin  by  the  same  authority.  Look  at  it 
as  crime,  and  it  is  capable  of  measured  retribution.  The  law  does  not 
pursue  the  murderer  beyond  the  gallows.  He  has  expiated  his  crime 
with  his  life.  But  the  slightest  sin,  even  if  it  is  no  crime  at  all,  as  for 
example  the  anger  of  a  man  against  his  brother,  an  anger  which  docs 
not  utter  itself  in  the  form  of  violent  deeds,  but  is  pent  up  in  the  heart, — 
such  non-criminal  sin  will  banish  the  soul  forever  from  heaven,  unless 
it  is  made  naught  by  sincere'  repentance." 

The  points  already  presented  in  this  chapter  are  perhaps 
sufficient  in  this  place  to  illustrate  the  principle  announced  in 
the  word  of  Christ;  and,  although  that  principle  is  plain,  and  is 


WHAT    IS    DUE   TO    GOD,   AND    WHAT    TO    C.^ESAR  f          31 

readily  accepted  by  the  sober,  common-sense  thought  of  every 
man,  yet  through  the  selfish  ambition  of  men  the  world  has 
been  long  in  learning  and  accepting  the  truth  of  the  lesson. 
The  United  States  is  the  first  and  only  government  in  history 
that  is  based  on  the  principle  established  by  Christ.  In  Arti- 
cle VI  of  the  national  Constitution,  this  nation  says  that  "no 
religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States."  By  an  amend- 
ment making  more  certain  the  adoption  of  the  principle,  it 
declares  in  the  first  amendment  to  the  Constitution,  "Con- 
gress shall  make  no  law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  thereof."  This  first 
amendment  was  adopted  in  1789,  by  the  first  Congress  that 
ever  met  under  the  Constitution.  In  1796  a  treaty  was  made 
with  Tripoli,  in  which  it  was  delared  (Article  II)  that  "the 
government  of  the  United  States  of  America  is  not  in  any 
sense  founded  on  the  Christian  religion."  This  treaty  was 
framed  by  an  cx-Congregationalist  clergyman,  and  was  signed 
by  President  Washington.  It  was  not  out  of  disrespect  to 
religion  or  Christianity  that  these  clauses  were  placed  in  the 
Constitution,  and  that  this  one  was  inserted  in  that  treaty.  On 
the  contrary,  it  was  entirely  on  account  of  their  respect  for 
religion,  and  the  Christian  religion  in  particular,  as  being  be- 
yond the  province  of  civil  government,  pertaining  solely  to  the 
conscience,  and  resting  entirely  between  the  individual  anel 
God.  It  was  because  of  this  that  this  nation  was  consti- 
tutionally established  according  to  the  principle  of  Christ, 
demanding  of  men  only  that  they  render  to  Caesar  that  which 
is  Caesar's,  and  leaving  them  entirely  free  to  render  to  God 
that  which  is  God's,  if  they  choose,  as  they  choose,  and  when 
they  choose;  or,  as  expressed  by  Washington  himself,  in  reply 
to  an  address  upon  the  subject  of  religious  legislation: — 

"Every  man  who  conducts  himself  as  a  good  citizen,  is  accounta- 
ble alone  to  God  for  his  religious  faith,  and  should  be  protected  in 
worshiping  God  according  to  the  dictates  of  his  own  conscience." 


32  CIVIL    GOVERNMENT   AND    RELIGION. 

We  cannot  more  fitly  close  this  chapter  than  with  the  fol- 
lowing tribute  of  George  Bancroft  to  this  principle,  as  embod- 
ied in  the  words  of  Christ,  and  in  the  American  Constitution  :— 

"In  the  earliest  States  known  to  history,  government  and  religion 
were  one  and  indivisible.  Each  State  had  its  special  deity,  and  often 
these  protectors,  one  after  another,  might  be  overthrown  in  battle, 
never  to  rise  again.  The  Peloponnesian  War  grew  out  of  a  strife 
about  an  oracle.  Rome,  as  it  sometimes  adopted  into  citizenship 
those  whom  it  vanquished,  introduced  in  like  manner,  and  with  good 
logic  for  that  day,  the  worship  of  their  gods.  No  one  thought  of  vin- 
dicating religion  for  the  conscience  of  the  individual,  till  a  voice  in 
Judea,  breaking  day  for  the  greatest  epoch  in  the  life  of  humanity,  by 
establishing  a  pure  spiritual  and  universal  religion  for  all  mankind, 
enjoined  to  render  to  Caesar  only  that  which  is  Caesar's.  The  rule  was 
upheld  during  the  infancy  of  the  gospel  for  all  men.  No  sooner  was 
this  religion  adopted'  by  the  chief  of  the  Roman  Empire  than  it  was 
shorn  of  its  character  of  universality,  and  enthralled  by  an  unholy  con- 
nection with  the  unholy  State;  and  so  it  continued  till  the  new  nation, 
— the  least  defiled  with  the  barren  scoffings  of  the  eighteenth  century 
the  most  general  believer  in  Christianity  of  any  people  of  that  age, 
the  chief  heir  of  the  Reformation  in  its  purest  forms, — when  it  came  to 
establish  a  government  for  the  United  States,  refused  to  treat  faith  as 
a  matter  to  be  regulated  by  a  corporate  body,  or  having  a  headship  in 
a  monarch  or  a  State. 

"Vindicating  the  right  of  individuality  even  in  religion,  and  in 
religion  above  all,  the  new  nation  dared  to  set  the  example  of  accept- 
ing in  its  relations  to  God  the  principle  first  divinely  ordained  of  God 
in  Judea.  It  left  the  management  of  temporal  things  to  the  temporal 
power;  but  the  American  Constitution,  in  harmony  with  the  people  of 
the  several  States,  withheld  from  the  Federal  Government  the  power 
to  invade  the  home  of  reason,  the  citadel  of  conscience,  the  sanctuary 
of  the  soul;  and  not  from  indifference,  but  that  the  infinite  Spirit  of 
eternal  truth  might  move  in  its  freedom  and  purity  and  power." — 
History  of  the  Format  ion  of  the  Constitution,  last  chapter. 

Thus  the  Constitution  of  the  United  States  as  it  is  stands  as 
the  sole  monument  of  all  history,  representing  the  principle 
which  Christ  established  for  earthly  government.  And  under 
it,  in  liberty,  civil  and  religious,  in  enlightenment,  and  in  prog- 
ress, this  nation  has  deservedly  stood  as  the  beacon  light  of  the 
world,  for  more  than  ;i  hundred  years. 


CHAPTER  III. 


THE    POWERS    THAT    BE. 

IN  support  of  the  doctrine  that  civil  government  has  the 
right  to  act  in  things  pertaining  to  God,  the  text  of  Scripture 
is  quoted  which  says,  ' '  The  powers  that  be  are  ordained  of 
God."  This  passage  is  found  in  Rom.  13:  i.  The  first  nine 
verses  of  the  chapter  are  devoted  to  this  subject,  showing  that 
the  powers  that  be  are  ordained  of  God,  and  enjoining  upon 
Christians,  upon  every  soul,  in  fact,  the  duty  of  respectful  sub- 
jection to  civil  government.  The  whole  passage  reads  as  fol- 
lows:— 

"  Let  every  soul  be  subject  unto  the  higher  powers.  For  there  is 
no  power  but  of  God;  the  powers  that  be  are  ordained  of  God.  Whoso- 
ever therefore  resisteth  the  power,  resisteth  the  ordinance  of  God;  and 
they  that  resist  shall  receive  to  themselves  damnation.  For  rulers  are 
not  a  terror  to  good  works,  but  to  the  evil.  Wilt  thou  then  not  be  afraid 
of  the  power?  do  that  which  is  good,  and  thou  shalt  have  praise  of 
the  same;  for  he  is  the  minister  of  God  to  thee  for  good.  But  if  thou 
do  ""hat  which  is  evil,  be  afraid;  for  he  beareth  not  the  sword  in  vain; 
.  for  he  is  the  minister  of  God,  a  revenger  to  execute  wrath  upon  him 
that  doeth  evil.  Wherefore  ye  must  needs  be  subject,  not  only  for 
wrath,  but  also  for  conscience'  sake.  For  for  this  cause  pay  ye  trib- 
ute also;  for  they  are  God's  ministers,  attending  continually  upon  this 
very  thing.  Render  therefore  to  all  their  dues:  tribute  to  whom  trib- 
ute is  due;  custom  to  whom  custom;  fear  to  whom  fear;  honor  to 
whom  honor.  Owe  no  man  anything,  but  to  love  one  another;  for  he 
that  loveth  another  hath  fulfilled  the  law.  For  this,  Thou  shalt  not 
commit  adultery,  Thou  shalt  not  kill,  Thou  shalt  not  steal,  Thou  shalt 
not  bear  false  witness,  Thou  shalt  not  covet;  and  if  there  be  any  other 
commandment,  it  is  briefly  comprehended  in  this  saying,  namely, 
Thou  shalt  love  thy  neighbor  as  thyself." 


34  CIVIL    GOVERNMENT    AND    RELIGION. 

It  is  easy  to  see  that  this  scripture  is  but  an  exposition  of 
the  words  of  Christ,  ' '  Render  to  Caesar  the  things  that  are 
Caesar's."  In  the  Saviour's  command  to  render  unto  Caesar 
the  things  that  are  Caesar's,  there  is  plainly  a  recognition  of 
the  right-fulness  of  civil  government,  and  that  civil  government 
has  clainis  upon  us  which  we  are  in  duty  bound  to  recognize; 
and  that  there  are  things  which  duty  requires  us  to  render  to 
the  civil  government.  This  scripture  in  Romans  13  simply 
states  the  same  tiling  in  other  words:  "  Let  every  soul  be  sub- 
ject unto  the  higher  powers.  For  there  is  no  power  but  of 
God;  the  powers  that  be  are  ordained  of  God." 

Again,  the  Saviour's  words  were  called  out  by  a  question 
concerning  tribute.  They  said  to  him,  "Is  it  lawful  to  give 
tribute  unto  Qesar,  or  not?"  Rom.  13:  6  refers  to  the  same 
thing,  saying,  "For  for  this  cause  pay  ye  tribute  also;  for 
they  are  God's  ministers,  attending  continually  upon  this  very 
thing."  In  answer  to  the  question  of  the  Pharisee  about  the 
tribute,  Christ  said,  "  Render  therefore  unto  Caesar  the  things 
which  are  Caesar's."  Rom.  13:7,  taking  up  the  same  thought, 
says,  "Render  therefore  to  all  their  dues:  tribute  to  whom 
tribute  is  due;  custom  to  whom  custom;  fear  to  whom  fear; 
honor  to  whom  honor. ' '  These  references  make  positive  that 
which  we  have  stated, — that  this  portion  of  Scripture  (Rom. 
13:  1-9)  is  a  divine  commentary  upon  the  words  of  Christ  in 
Matt.  22:  17-21. 

In  the  previous  chapter  we  have  shown  by  many  proofs' 
that,  civil  government  has  nothing  to  do  with  anything  that 
pertains  to  God.  If  the  argument  in  that  chapter  is  sound, 
then  Rom.  13:  1-9,  being  the  Lord's  commentary  upon  the 
words  which  are  the  basis  of  that  argument,  ought  to  confirm 
the  position  there  taken.  And  this  it  does. 

The  passage  in  Romans  refers  first  to  civil  government, 
the  higher  powers, — not  the  highest  power,  but  the  powers 
that  be.  Next  it  speaks  of  rulers,  as  bearing  the  sword  and 


THE    POWERS    THAT    BE.  35 

attending  upon  matters  of  tribute.  Then  it  commands  to  ren- 
der tribute  to  whom  tribute  is  due,  and  says,  ' '  Owe  no  man 
anything,  but  to  love  one  another;  for  he  that  loveth  another 
hath  fulfilled  the  law."  Then  he  refers  to  the  sixth,  seventh, 
eighth,  ninth,  and  tenth  commandments,  and  says,  "If  there 
be  any  other  commandment,  it  is  briefly  comprehended  in  this 
saying,  namely,  Thou  shalt  love  thy  neighbor  as  thyself. ' ' 

There  are  other  commandments  of  this  same  law  to  which 
Paul  refers.  Why,  then,  did  he  say,  ''If  there  be  any  other 
commandment,  it  is  briefly  comprehended  in  this  saying,  Thou 
shalt  love  thy  neighbor  as  thyself"  ?  There  are  the  four  com- 
mandments of  the  first  table  of  this  same  law, — the  command- 
ments which  say,  ' '  Thou  shalt  have  no  other  gods  before  me;  ' ' 
' '  Thou  shalt  not  make  unto  thee  any  graven  image,  or  any  like- 
ness of  anything;  "  "  Thou  shalt  not  take  the  name  of  the  Lord 
thy  God  in  vain;  "  "  Remember  the  Sabbath  day  to  keep  it 
holy."  Then  there  is  the  other  commandment  in  which  are 
briefly  comprehended  all  these, — "Thou  shalt  love  the  Lord 
thy  God  with  all  thy  heart,  and  with  all  thy  soul,  and  with  all 
thy  mind,  and  with  all  thy  strength. ' ' 

Paul  knew  full  well  of  these  commandments.  Why,  then, 
did  he  say,  ' '  If  there  be  any  other  commandment,  it  is  briefly 
comprehended  in  this  saying,  namely,  Thou  shalt  love  thy 
neighbor  as  thyselP'  ?  Answer — Because  he  was  writing 
concerning  the  words  of  the  Saviour  which  relate  to  our  duties 
to  civil  government. 

Our  duties  under  civil  government  pertain  solely  to  the 
government  and  to  our  fellow-men,  because  the  powers  of  civil 
government  pertain  solely  to  men  in  their  relations  one  to 
another,  and  to  the  government.  But  the  Saviour's  words  in 
the  same  connection  entirely  separated  that  which  pertains  to 
God  from  that  which  pertains  to  civil  government.  The  things 
which  pertain  to  God  are  not  to  be  rendered  to  civil  govern- 
ment— to  the  powers  that  be;  therefore  Paul,  although  know- 


36  CIVIL    GOVERNMENT    AND    RELIGION. 

ing  full  well  that  there  were  other  commandments,  said,  "If 
there  be  any  other  commandment,  it  is  briefly  comprehended 
in  this  saying,  namely,  Thou  shall  love  thy  neighbor  as  thy- 
self; "  that  is,  if  there  be  any  other  commandment  which  comes 
into  the  relation  between  man  and  civil  government,  it  is 
comprehended  in  this  saying,  that  he  shall  love  his  neighbor 
as  himself,  thus  showing  conclusively  that  the  powers  that  be, 
though  ordained  of  God,  are  so  ordained  simply  in  things  per- 
taining to  the  relation  of  man  with  his  fellow-men,  and  in  those 
things  alone. 

As",  therefore,  the  instruction  in  Rom.  13:1-10  is  given  to 
Christians  concerning  their  duty  and  respect  to  the  powers  that 
be;  and  as  this  instruction  is  confined  absolutely  to  man's  rela- 
tionship to  his  fellow-men;  it  is  evident  that  when  Christians 
have  paid  their  taxes,  and  have  shown  proper  respect  to  their 
fellow-men,  then  their  obligation,  their  duty,  and  their  respect 
to  the  powers  that  be,  have  been  fully  discharged,  and  those 
powers  never  can  rightly  have  any  further  jurisdiction  over 
their  conduct.  This  is  not  to  say  that  the  State  has  jurisdic- 
tion of  the  last  six  commandments  as  such.  It  is  only  to  say 
that  the  jurisdiction  of  the  State  is  confined  solely  to  man's 
conduct  toward  man,  and  never  can  touch  his  relationship  to 
God,  even  under  the  second  table  of  the  law. 

Further,  as  in  this  divine  record  of  the  duties  that  men  owe 
to  the  powers  that  be,  there  is  no  reference  whatever  to  the 
first  table  of  the  law,  it  therefore  follows  that  the  powers  that 
be,  although  ordained  of  God,  have  nothing  whatever  to  do 
with  the  relations  which  men  bear  toward  God. 

As  the  ten  commandments  contain  the  whole  duty  of  man, 
and  a  ,  in  the  scriptural  enumeration  of  the  duties  that  men  owe 
to  the  powers  that  be,  there  is  no  mention  of  any  of  the  things 
contained  in  the  first  table  of  the  law,  it  follows  that  none  of 
the  duties  enjoined  in  the  first  table  of  the  law  of  Gocl,  do  men 
owe  to  the  powers  that  be;  that  is  to  say,  again,  that  the 


THE    POWERS    THAT    BE.  37 

powers  that  be,  although  ordained  of  God,  are  not  ordained  of 
God  in  anything  pertaining  to  a  single  duty  enjoined  in  any 
one  of  the  first  four  of  the  ten  commandments.  These  are 
duties  that  men  owe  to  God,  and  with  these  the  powers  that  be 
can  of  right  have  nothing  to  do,  because  Christ  has  commanded 
to  render  unto  God — not  to  Caesar,  nor  by  Caesar — that  which 
is  God's. 

This  is  confirmed  by  other  scriptures: — 

"  In  the  beginning  of  the  reign  of  Jehoiakim  the  son  of  Josiah 
king  of  Judah  came  this  word  unto  Jeremiah  from  the  Lord,  saying, 
Thus  saith  the  Lord  to  me:  Make  thee  bonds  and  yokes,  and  put 
theni  upon  thy  neck,  and  send  them  to  the  king  of  Edom,  and  to  the 
king  of  Moab,  and  to  the  king  of  the  Ammonites,  and  to  the  king  of 
Tyrus,  and  to  the  king  of  Zidon,  by  the  hand  of  the  messengers  which 
come  to  Jerusalem  unto  Zedekiah  king  of  Judah;  and  command  them 
to  say  unto  their  masters,  Thus  saith  the  Lord  of  hosts,  the  God  of 
Israel:  Thus  shall  ye  say  unto  your  masters:  I  have  made  the  earth, 
the  man  and  the  beast  that  are  upon  the  ground,  by  my  great  power 
and  by  my  outstretched  arm,  and  have  given  it  unto  whom  it  seemed 
meet  unto  me.  And  now  have  I  given  all  these  lands  into  the  hand 
of  Nebuchadnezzar  the  king  of  Babylon,  my  servant;  and  the  beasts 
of  the  field  have  I  given  him  also  to  serve  him.  And  all  nations  shall 
serve  him,  and  his  son,  and  his  son's  son,  until  the  very  time  of  his 
land  come,  and  then  many  nations  and  great  kings  shall  serve  them- 
selves of  him.  And  it  shall  come  to  pass,  that  the  nation  and  kingdom 
which  will  not  serve  the  same  Nebuchadnezzar  the  king  of  Babylon, 
and  that  will  not  put  their  neck  under  the  yoke  of  the  king  of  Babylon, 
that  nation  will  I  punish,  saith  the  Lord,  with  the  sword,  and  with 
the  famine,  and  with  the  pestilence,  until  I  have  consumed  them  by 
hi,s  hand." 

In  this  scripture  it  is  clearly  shown  that  the  power  of  Nebu- 
chadnezzar, king  of  Babylon,  was  ordained  of  God;  nor  to 
Nebuchadnezzar  alone,  but  to  his  son  and  his  son's  soi;,  which 
is  to  say  that  the  power  of  the  Babylonian  Empire,  as  an  impe- 
rial power,  was  ordained  of  God.  Nebuchadnezzar  was  plainly 
called  by  the  Lord,  "  My  servant,"  and  the  Lord  says,  "And 
now  have  I  given  all  these  lands  into  the  hand  of  Nebuchad- 


38  CIVIL    GOVERNMENT    AND    RELIGION. 

nczzar  the  king'  of  Babylon. ' '  He  further  says  that  whatever 
' '  nation  and  kingdom  which  will  not  serve  the  same  Nebuchad- 
nezzar the  king  of  Babylon,  and  that  will  not  put  their  neck 
under  the  yoke  of  the  king  of  Babylon,  that  nation  will  I 
punish." 

Now  let  us  see  whether  this  power  was  ordained  of  God  in 
things  pertaining  to  God.  In  the  third  chapter  of  Daniel  we 
have  the  record  that  Nebuchadnezzar  made  a  great  image  of 
gold,  set  it  up  in  the  plain  of  Dura,  and  gathered  together  the 
princes,  the  governors,  the  captains,  the  judges,  the  treasurers, 
the  counselors,  the  sheriffs,  and  all  the  rulers  of  the  provinces, 
to  the  dedication  of  the  image;  and  they  stood  before  the 
image  that  had  been  set  up.  Then  a  herald  from  the  king 
cried  aloud: — 

"  To  you  it  is  commanded,  O  people,  natipns,  and  languages,  that 
at  what  time  ye  hear  the  sound  of  the  cornet,  flute,  harp,  sackbut, 
psaltery,  dulcimer,  and  all  kinds  of  music,  ye  fall  down  and  worship 
the  golden  image  that  Nebuchadnezzar  the  king  hath  set  up;  and 
whoso  falleth  not  down  and  worshipeth  shall  the  same  hour  be  cast 
into  the  midst  of  a  burning  fiery  furnace." 

In  obedience  to  this  command,  all  the  people  bowed  down 
and  worshiped  before  the  image,  except  three  Jews, — Shadrach, 
Meshach,  and  Abed-nego.  This  disobedience  was  reported  to 
Nebuchadnezzar,  who  commanded  them  to  be  brought  before 
him,  when  he  asked  them  if  they  had  disobeyed  his  order 
intentionally.  He  himself  then  repeated  his  command  to  them. 

These  men  knew  that  they  had  been  made  subject  to  tin- 
king  of  Babylon  by  the  Lord  himself.  It  had  not  only  been 
prophesied  by  Isaiah  (chapter  39),  but  by  Jeremiah.  At  the 
final  siege  of  Jerusalem  by  Nebuchadnezzar,  the  Lord  through 
Jeremiah  told  the  people  to  submit  to  the  king  of  Babylon,  and 
that  whosoever  would  do  it,  it  should  be  well  with  them;  who- 
soever would  not  do  it,  it  should  be  ill  with  them.  Yet  these 
men,  knowing  all  this,  made  answer  to  Nebuchadnezzar  thus: — 


THE    POWERS    THAT    BE.  39 

"O  Nebuchadnezzar,  we  are  not  careful  to  answer  thee  in  this 
matter.  If  it  be  so,  our  God  whom  we  serve  is  able  to  deliver  us  from 
the  burning  fiery  furnace,  and  he  will  deliver  us  out  of  thine  hand,  O 
king.  But  if  not,  be  it  known  unto  thee,  O  king,  that  we  will  not 
thy  gods,  nor  worship  the  golden  image  which  thou  hast  set  up." 


Then  these  men  were  cast  into  the  fiery  furnace,  heated 
seven  times  hotter  than  it  was  wont  to  be  heated;  but  suddenly 
Nebuchadnezzar  rose  up  in  haste  and  astonishment,  and  said 
to  his  counselors,  '  '  Did  we  not  cast  three  men  bound  into  the 
midst  of  the  fire?"  They  answered,  "True,  O  king."  But 
he  exclaimed,  '  '  Lo,  I  see  four  men  loose,  walking  in  the  midst 
of  the  fire,  and  they  have  no  hurt;  and  the  form  of  the  fourth 
is  like  the  Son  of  God.  '  '  The  men  were  called  forth  :  — 

"Then  Nebuchadnezzar  spake,  and  said,  Blessed  be  the  God  of 
Shadrach,  Meshach,  and  Abed-nego,  who  hath  sent  his  angel,  and 
delivered  his  servants  that  trusted  in  him,  and  have  changed  the  king's 
word,  and  yielded  their  bodies,  that  they  might  not  serve  nor  worship 
any  god,  except  their  own  God." 

Here  there  is  demonstrated  the  following  facts:  First,  God 
gave  power  to  the  kingdom  of  Babylon;  second,  he  suffered 
his  people  to  be  subjected  to  that  power;  third,  he  defended 
his  people  by  a  wonderful  miracle  from  a  certain  exercise  of 
that  power.  Does  God  contradict  or  oppose  himself?  —  Far 
from  it.  What,  then,  does  this  show  ?  —  It  shows  conclusively 
that  this  was  an  undue  exercise  of  the  power  which  God  had 
given.  By  this  it  is  demonstrated  that  the  power  of  the  king- 
dom of  Babylon,  although  ordained  of  God,  was  not  ordained 
unto  any  such  purpose  as  that  for  which  it  was  exercised  ;  and 
that,  though  ordained  of  God,  it  was  not  ordained  to  be  author- 
ity in  things  pertaining  to  God,  or  in  things  pertaining  to  men's 
consciences.  And  it  was  written  for  the  instruction  of  future 
ages,  and  for  our  admonition  upon  whom  the  ends  of  the 
world  are  come. 

Another  instance:  We  read  above  that  the  power  of  Baby- 


40  CIVIL    GOVERNMENT    AND    RELIGION. 

Ion  was  given  to  Nebuchadnezzar,  and  his  son,  and  his  son's 
son,  and  that  all  nations  should  serve  Babylon  until  that  time, 
and  that  then  nations  and  kings  should  serve  themselves  of 
him.  Other  prophecies  show  that  Babylon  was  then  to  be 
destroyed.  Jer.  51:28  says  that  the  kings  of  the  Medes,  and 
all  his  land,  with  the  captains  and  rulers,  should  be  prepared 
against  Babylon  to  destroy  it.  Isa.  21:2  shows  that  Persia 
(Elam)  should  accompany  Media  in  the  destruction  of  Babylon. 
Isa.  45:1-4  names  Cyrus  as  the  leader  of  the  forces,  more  than 
a  hundred  years  before  he  was  born,  and  one  hundred  and 
seventy-four  years  before  the  time.  And  of  Cyrus,  the  prophet 
said  from  the  Lord,  "  I  have  raised  him  up  in  righteousness, 
and  I  will  direct  all  his  ways;  he  shall  build  my  city,  and  he 
shall  let  go  my  captives,  not  for  price  nor  reward,  saith  the 
Lord  of  hosts."  Isa.  45:13.  But  in  the  conquest  of  Babylon, 
Cyrus  was  only  the  leader  of  the  forces.  The  kingdom  and 
rule  were  given  to  Darius  the  Meclc;  for,  said  Daniel  to  Bel- 
shazzar,  on  the  night  when  Babylon  fell,  "Thy  kingdom  is 
divided,  and  given  to  the  Medes  and  Persians."  Then  the 
record  proceeds :  "  In  that  night  was  Belshazzar  the  king  of  the 
Chaldeans  slain.  And  Darius  the  Median  took  the  kingdom." 
Of  him  we  read  in  Dan.  n:  i,  the  words  of  the  angel  Gabriel 
to  the  prophet,  "  I  in  the  first  year  of  Darius  the  Mede,  even 
I,  stood  to  confirm  and  to  strengthen  him." 

There  can  be  no  shadow  of  doubt,  therefore,  that  the 
power  of  Media  and  Persia  was  ordained  of  God.  Darius 
made  Daniel  prime  minister  of  the  empire.  But  a  number  of 
the  presidents  and  princes,  envious  of  the  position  given  to 
Daniel,  attempted  to  undermine  him.  After  earnest  efforts  to 
find  occasion  against  him  in  matters  pertaining  to  the  kingdom, 
they  were  forced  to  confess  that  there  was  neither  error  nor 
fault  anywhere  in  his  conduct.  Then  said  these  men,  "  We 
shall  not  find  any  occasion  against  this  Daniel,  except  we  find 
it  against  him  concerning  the  law  of  his  God."  They  there- 


THE    POWERS    THAT    BE.  4! 

fore  assembled  together  to  the  king,  and  told  him  that  all  the 
presidents  of  the  kingdom,  and  the  governors,  and  the  princes, 
and  the  captains,  had  consulted  together  to  establish  a  royal 
statute,  and  to  make  a  decree  that  whoever  should  ask  a  peti- 
tion of  any  god  or  man,  except  the  king,  for  thirty  days, 
should  be  cast  into  the  den  of  lions.  Darius,  not  suspecting 
their  object,  signed  the  decree.  Daniel  knew  that  the  decree 
had  been  made,  and  signed  by  the  king.  It  was  hardly  pos- 
sible for  him  not  to  know  it,  being  prime  minister.  Yet,  not- 
withstanding his  knowledge  of  the  affair,  he  went  into  his 
chamber,  and,  his  windows  being  opened  toward  Jerusalem,  he 
kneeled  upon  his  knees  three  times  a  day,  and  prayed  and 
gave  thanks  before  God,  as  he  did  aforetime.  He  did  not 
even  close  the  windows.  He  paid  no  attention  to  the  decree 
that  had  been  made,  although  it  forbade  his  doing  as  he  did, 
under  the  penalty  of  being  thrown  to  the  lions.  He  well 
understood  that,  although  the  power  of  Media  and  Persia  was 
ordained  of  God,  it  was  not  ordained  to  interfere  in  matters 
of  duty  which  he  owed  only  to  God. 

As  was  to  be  expected,  the  men  who  had  secured  the  pas- 
sage of  the  decree  found  him  praying  and  making  supplications 
before  his  God.  They  went  at  once  to  the  king  and  asked 
him  if  he  had  not  signed  a  decree  that  every  man  who  should 
ask  a  petition  of  any  god  or  man  within  thirty  days,  except 
of  the  king,  should  be  cast  into  the  den  of  lions.  The  king 
replied  that  this  was  true,  and  that,  according  to  the  law  of 
the  Medes  and  Persians,  it  could  not  be  altered.  Then  they 
told  him  that  Daniel  did  not  regard  the  king,  nor  the  decree 
that  he  had  signed,  but  made  his  petition  three  times  a  day. 
The  king  realized  in  a  moment  that  he  had  been  entrapped, 
but  there  was  no  remedy.  Those  who  were  pushing  the  mat- 
ter held  before  him  the  law,  and  said,  "Know,  O  king,  that 
the  law  of  the  Medes  and  Persians  is,  That  no  decree  or  statute 
which  the  king  established!  may  be  changed."  Nothing  could 


42  CIVIL    GOVERNMENT    AND    RELIGION. 

be  done;  .the  decree,  being  law,  must  be  enforced.  Daniel 
was  cast  to  the  lions.  In  the  morning  the  king  came  to  the 
den  and  called  to  Daniel,  and  Daniel  replied,  "O  king,  live 
forever;  my  God"  hath  sent  his  angel,  and  hath  shut  the  lions' 
mouths,  that  they  have  not  hurt  me;  forasmuch  as  before  him 
innocency  was  found  in  me;  and  also  before  thee,  O  king, 
have  I  done  no  hurt. ' ' 

Thus  again  God  has  shown  that,  although  the  powers  that 
be  are  ordained  of  God,  they  are  not  ordained  to  act  in  things 
that  pertain  to  men's  relation  toward  God.  Christ's  words 
are  a  positive  declaration  to  that  effect,  and  Rom.  13  :  1-9  is 
a  further  exposition  of  the  principle. 

Let  us  look  a  moment  at  this  question  from  a  common- 
sense  point  of  view.  Of  course  all  we  are  saying  is  common 
sense,  but  let  us  have  this  in  addition:  When  societies  are 
formed,  each  individual  surrenders  the  personal  exercise  of 
certain  rights,  and,  as  an  equivalent  for  that  surrender,  has 
secured  to  him  the  fuller  enjoyment  of  these,  and  all  other 
rights  pertaining  to  person  and  property,  without  the  protec- 
tion of  which  society  cannot  exist. 

Each  person  has  the  natural  right  to  protect  his  person  and 
property  against  all  invasions,  but  if  this  right  is  to  be  per- 
sonally exercised  in  all  cases  by  each  person,  then  in  the 
present  condition  of  human  nature  every  man's  hand  will  be 
against  his  neighbor.  That  is  simple  anarchy,  and  in  such  a 
condition  of  affairs  society  cannot  exist.  Now  suppose  a  hun- 
dred of  us  are  thrown  together  in  a  certain  place  where  there 
is  no  established  order;  each  one  has  all  the  rights  of  any  other 
one.  But  if  each  one  is  individually  to  exercise  these  rights 
of  self-protection,  he  has  the  assurance  of  only  that  degree  of 
protection  which  he  alone  can  furnish  to  himself,  which  we 
have  seen  is  exceedingly  slight.  Therefore  all  come  together, 
and  eac-li  surrenders  to  the  whole  body  that  individual  right, 
and  in  return  for  this  surrender  he  receives  the  power  of  all  for 


THE    POWERS    THAT    BE.  43 

his  protection.  He  therefore  receives  the  help  of  the  other 
ninety-nine  to  protect  himself  from  the  invasion  of  his  rights, 
and  he  is  thus  made  many  hundred  times  more  secure  in  his 
rights  of  person  and  property  than  he  is  without  this  surrender. 

But  what  condition  of  thing's  can  ever  be  conceived  oi 
among  men  that  would  justify  any  man  in  surrendering  the 
personal  exercise  of  his  right  to  believe — which  in  itself  would 
be  the  surrender  of  his  right  to  believe  at  all  ?  What  could  he 
receive  as  an  equivalent  ?  When  he  has  surrendered  his  right 
to  believe,  he  has  virtually  surrendered  his  right  to  think. 
When  he  surrenders  his  right  to  believe,  he  surrenders  every- 
thing, and  it  is  impossible  for  him  ever  to  receive  an  equiva- 
lent; he  has  surrendered  his  very  soul.  Eternal  life  depends 
upon  believing  on  the  Lord  Jesus  Christ,  and  the  man  who 
surrenders  his  right  to  believe,  surrenders  eternal  life.  Says 
the  Scripture,  ' '  With  the  mind  I  myself  serve  the  law  of  God. ' ' 
A  man  who  surrenders  his  right  to  believe  surrenders  God. 
Consequently,  no  man,  no  association  or  organization  of  men, 
can  ever  rightly  ask  of  any  man  a  surrender  of  his  right  to 
believe.  Every  man  has  the  right,  so  far  as  organizations  of 
men  are  concerned,  to  believe  as  he  pleases;  and  that  right, 
so  long  as  he  is  a  Protestant,  so  long  as  he  is  a  Christian,  yes, 
so  long  as  he  is  a  man,  he  never  can  surrender,  and  he  never 
will. 

Another  important  question  to  consider  in  this  connection 
is,  How  are  the  powers  that  be,  ordained  of  God  ?  Are  they 
directly  and  miraculously  ordained,  or  are  they  providentially 
so  ?  We  have  seen  by  the  Scripture  that  the  power  of  Neb- 
uchadnezzar as  king  of  Babylon  was  ordained  of  God.  Did 
God  send  a  prophet  or  a  priest  to  anoint  him  king,  or  did  he 
send  a  heavenly  messenger,  as  he  did  to  Moses  and  Gideon  ? 
— Neither.  Nebuchadnezzar  was  king  because  he  was  the  son 
of  his  father,  who  had  been  king.  Ht»w  did  his  father  become 
king? — In  625  B.  c.  Babylonia  was  but  a  province  of  the 


44  CIVIL    GOVERNMENT    AND    RELIGION. 

empire  of  Assyria;  Media  was  another.  Both  revolted,  and 
at  the  same  time.  The  king  of  Assyria  gave  Nabopolassar 
command  of  a  large  force,  and  sent  him  to  Babylonia  to  quell 
the  revolt,  while  he  himself  led  other  forces  into  Media,  to  put 
down  the  insurrection  there.  Nabopolassar  did  his  work  so 
well  in  Babylonia  that  the  king  of  Assyria  rewarded  him  with 
the  command  of  that  province,  with  the  title  of  king  of  Babylon. 
Thus  we  see  that  Nabopolassar  received  his  power  from  the 
king  of  Assyria.  The  king  of  Assyria  received  his  from  his 
father,  Asshur-bani-pal;  Asshur-bani-pal  received  his  from  his 
father,  Esar-haddon;  Esar-haddon  received  his  from  his  father, 
Sennacherib;  Sennacherib  received  his  from  his  father,  Sargon; 
and  Sargon  received  his  from  the  troops  in  the  field,  that  is, 
from  the  people.  Thus  we  see  that  the  power  of  the  kingdom 
of  Babylon,  and  of  Nebuchadnezzar  the  king,  or  of  his  son,  or 
of  his  son's  son,  was  simply  providential,  and  came  merely 
from  the  people. 

Take,  for  example,  Victoria,  queen  of  Great  Britain.  How 
did  she  receive  her  power? — Simply  by  the  fact  that  she  was 
the  first  in  the  line  of  succession  when  William  the  Fourth  died. 
Through  one  line  she  traces  her  royal  lineage  to  William  the 
Conqueror.  But  who  was  William  the  Conqueror? — He  was  a 
Norman  chief  who  led  his  forces  into  England  in  1066,  and 
established  his  power  there.  How  did  he  become  a  chief  of 
the  Normans? — The  Normans  made  him  so,  and  in  that  line  it 
is  clear  that  the  power  of  Queen  Victoria  sprang  only  from  the 
people. 

Following  the  other  line:  The  house  that  now  rules  Britain, 
represented  in  Victoria,  is  the  house  of  Hanover.  Hanover  is 
a  province  of  Germany.  How  came  the  house  of  Hanover  to 
reign  in  England? — When  Queen  Anne  died,  the  next  in  the 
line  of  succession  was  George  of  Hanover,  who  became  king  of 
England,  under  the  title  -of  George  the  First. "  How  did  he 
receive  his  princely  dignity? — Through  his  lineage,  from  Henry 


THE    POWERS    THAT    BE.  45 

the  Lion,  son  of  Henry  the  Proud,  who  received  the  duchy  of 
Saxony  from  Frederick  Barbarossa,  in  1156.  Henry  the  Lion, 
son  of  Henry  the  Proud,  was  a  prince  of  the  house  of  Guelph, 
of  Swabia.  The  father  of  the  house  of  Guelph  was  a  prince  of 
the  Alemanni,  who  invaded  the  Roman  Empire  and  established 
their  power  in  what  is  now  Southern  Germany,  and  were  the 
origin  of  what  is  now  the  German  nation  and  empire.  But  who 
made  this  man  a  prince? — The  savage  tribes  of  Germany.  So 
in  this  line  also  the  royal  dignity  of  Queen  Victoria  sprang 
from  the  people. 

And  besides  all  this,  the  imperial  power  of  Queen  Victoria 
as  she  now  reigns  is  circumscribed — limited — by  the  people. 
It  has  been  related,  and  has  appeared  in  print,  that  on  one 
occasion,  Gladstone,  while  prime  minister  and  head  of  the 
House  of  Commons,  took  a  certain  paper  to  the  queen  to  be 
signed.  She  did  not  exactly  approve  of  it,  and  said  she  would 
not  sign  it.  Gladstone  spoke  of  the  merit  of  the  act,  but  the 
queen  still  declared  she  would  not  sign  it.  Gladstone  replied, 
"Your  Majesty  must  sign  it."  "Must  sign!  "  exclaimed  the 
queen;  "must  sign!  Do  you  know  who  I  am?  I  am  the  queen 
of  England."  Gladstone  calmly  replied,  "Yes,  Your  Majesty, 
but  I  am  the  PEOPLE  of  England;"  and  she  had  to  sign  it. 
The  people  of  England  can  command  the  queen  of  England; 
the  power  of  the  people  of  England  is  above  that  of  the  queen 
of  England.  She,  as  queen,  is  simply  the  representative  of 
their  power.  And  if  the  people  of  England  should  choose  to 
dispense  with  their  expensive  luxury  of  royalty,  and  turn  their 
form  of  government  into  that  of  a  republic,  it  would  be  but 
the  legitimate  exercise  of  their  right;  and  the  government  thus 
formed,  the  power  thus  established,  would  be  ordained  of  God 
as  much  as  that  which  now  is,  or  as  any  could  be. 

Personal  sovereigns  in  themselves  are  not  those  referred  to 
in  the  words,  "The  powers  that  be  are  ordained  of  God."  It 
is  the  governmental power,  of  which  the  sovereign  is  the  repre- 


46  CIVIL    GOVERNMENT    AND    RELIGION. 

sentative,  and  that  sovereign  receives  his  power  from  the  peo- 
ple. Outside  of  the  theocracy  of  Israel,  there  never  has  been 
a  ruler  on  earth  whose  authority  was  not,  primarily  or  ulti- 
mately, expressly  or  permissively,  derived  from  the  people. 
It  is  not  particular  sovereigns  whose  power  is  ordained  of  God", 
nor  any  particular  form  of  government.  //  ?s  the  genius  of 
government  itself.  The  absence  of  government  is  anarchy. 
Anarchy  is  only  governmental  confusion.  But  says  the 
Scripture,  "God  is  not  the  author  of  confusion."  God  is  the 
God  of  order.  He  has  ordained  order,  and  he  has  put  within 
man  himself  that  idea  of  government,  of  self-protection,  which 
is  the  first  law  of  nature,  and  which  organizes  itself  into  forms 
of  one  kind  or  another,  wherever  men  dwell  on  the  face  of  the 
earth.  And  it  is  for  men  themselves  to  say  what  shall  be  the 
form  of  government  under  which  they  shall  dwell.  One  peo- 
ple has  one  form;  another  has  another.  This  genius  of  civil 
order  springs  from  God;  its  exercise  within  its  legitimate  sphere 
is  ordained  of  God;  and  the  Declaration  of  Independence 
simply  asserted  the  eternal  truth  of  God  when  it  said,  "  Gov- 
ernments derive  their  just  powers  from  the  consent  of  the  gov- 
erned." It  matters  not  whether  they  be  exercised  in  one  form 
of  government  or  in  another,  the  governmental  power  and  order 
thus  exercised  are  ordained  of  God.  If  the  people  choose  to 
change  their  form  of  government,  it  is  still  the  same  power;  it 
is  to  be  respected  still,  because  it  is  still  ordained  of  God  in  its 
legitimate  exercise, — in  things  pertaining  to  men  and  their  rela- 
tion to  their  fellow-men;  but  no  power,  whether  exercised 
through  one  form  or  another,  is  ordained  of  God  to  act  in 
things  pertaining  to  God;  nor  has  it  anything  whatever  to  do 
with  man's  relations  toward  God. 

Except  in  the  nation  of  Israel,  it  is  not,  and  never  has  been, 
personal  sovereigns  in  themselves  that  have  been  referred  to 
in  the  statement  that  "the  powers  that  be  are  ordained  of 
God."  It  is  not  the  persons  that  be  in  power,  but  the  powers 


THE    POWERS    THAT    BE.  47 

that  be  in  the  person,  that  are  ordained  of"  God.  The  inquiry 
of  Rom.  13:3  is  not,  Wilt  thou  then  not  be  afraid  of  the  per- 
son ?  but  it  is,  "Wilt  thou  then  not  be  afraid  of  the  power?  " 
It  is  not  the  person,  therefore,  but  the  power  that  is  represented 
in  the  person,  that  is  under  consideration  here.  And  that  per- 
son derives  his  power  from  the  people,  as  is  clearly  proved  by 
the  scriptural  examples  and  references  given.  "  To  the  people 
we  come  sooner  or  later;  it  is  upon  their  wisdom  and  self- 
restraint  that  the  most  cunningly  devised  scheme  of  government 
will  in  the  last  resort  depend." — Bryce,  American  Common- 
wealth, chapter  24,  last  sentence. 


PART    II. 


THE  RIGHTS  OF  THE  PEOPLE. 


THE  RIGHTS  OF  THE  PEOPLE. 


CHAPTER  I. 

Ox  the  reverse  side  of  the  great  seal  of  the  United  States 
there  is  a  Latin  inscription — Novus  Ordo  Seclorum — jneaning 
"A  New  Order  of  Things."  This  new  order  of  things  was 
designed  and  accomplished  in  the  American  Revolution,  which 
was  the  expression  of  two  distinct  ideas:  First,  that  govern- 
ment is  of  the  people;  and,  second,  that  government  is  of  right 
entirely  separate  from  religion. 

These  two  ideas  are  but  the  result  of  the  one  grand  funda- 
mental principle,  the  chief  corner  stone  of  American  institutions, 

which  is  THE  RIGHTS  OF  THE  PEOPLE. 

This  is  briefly  comprehended,  and  nobly  expressed,  in  the 
following  words  of  the  Declaration  of  Independence: — 

"We  hold  these  truths  to  be  self-evident:  that  all  men  are  created 
equal;  that  they  are  endowed  by  their  Creator  with  certain  unalienable 
rights;  that  among  these  are  life,  liberty,  and  the  pursuit  of  happiness. 
That  to  secure  these  rights  governments  are  instituted  among  men, 
deriving  their  just  powers  from  the  consent  of  the  governed;  that  when 
any  form  of  government  becomes  destructive  of  these  ends,  it  is  the 
right  of  the  people  to  alter  or  to  abolish  it,  and  to  institute  a  new 
government,  laying  its  foundation  on  such  principles  and  organizing 
its  powers  in  such  form,  as  to  them  shall  seem  most  likely  to  effect 
their  safety  and  happiness." 

Thus  in  two  sentences  was  annihilated  the  despotic  doctrine, 
which  had  become  venerable,  if  not  absolutely  hallowed,  by 
the  precedents  of  a  thousand  years — the  doctrine  of  the  divine 

(50 


52  THE    RIGHTS    OF    THE    PEOPLE. 

right  of  rulers ;  and  in  the  place  of  the  old  falsehood,  and  des- 
potic theory,  of  the  sovereignty  of  the  government  and  the 
subjection  of  the  people,  there  was  declared,  to  all  nations  and 
for  all  time,  the  self-evident  truth  and  divine  principle  of  the 
subjection  of 'the government  and  THE  SOVEREIGNTY  OF  THE 

PEOPLE. 

In  declaring  the  equal  and  inalienable  right  of  all  men  to 
life,  liberty,  and  the  pursuit  of  happiness,  and  that  governments 
derived  their  just  powers  from  the  consent  of  the  governed, 
there  is  not  only  declared  the  sovereignty  of  the  people,  but 
also  the  entire  capability  of  the  people.  The  declaration,  in 
itself,  presupposes  that  men  are  men  indeed,  and  that  as  such 
they  are  fully  capable  of  deciding  for  themselves  as  to  what  is 
best  for  their  happiness,  and  how  they  shall  pursue  it,  without 
the  government's  being  set  up  as  a  parent  or  guardian  to  deal 
with  them  as  with  children. 

In  declaring  that  governments  are  instituted  by  the  gov- 
erned, for  certain  ends,  and  that  when  any  government  becomes 
destructive  of  these  ends,  it  is  the  right  of 'the  people 'to  alter  or 
to  abolish  it,  and  to  institute  a  new  government,  in  such  form 
as  to  them  shall  seem  most  lively  to  effect  their  safety  and  hap- 
piness, it  is  likewise  declared  that,  instead  of  the  people's  needing 
to  be  cared  for  by  the  government,  the  government  must  be 
cared  for  by  the  people. 

In  declaring  the  objects  of  government  to  be  to  secure  to 
the  people  the  rights  which  they  already  possess  in  full  meas- 
ure and  inalienable  degree,  and  to  effect  their  safety  and  happi- 
ness in  the  enjoyment  of  those  rights;  and  in  declaring  the 
right  of  the  people,  in  the  event  named,  to  alter  or  abolish  the 
government  which,  they  have,  and  institute  a  new  one  on  such 
principles  and  in  such  form  as  to  them  seems  best;  there  is 
likewise  declared  not  only  the  complete  subordination  but  also 
the  absolute  impersonality  of  government.  It  is  therein  de- 
clared that  the  government  is  but  a  device,  a  piece  of  political 


THE    RIGHTS    OF    THE    PEOPLE.  53 

machinery,  framed  and  set  up  by  the  people,  by  which  they 
would  make  themselves  secure  in  the  enjoyment  of  the  inalien- 
able rights  which  they  already  possess  as  men,  and  which  they 
have  by  virtue  of  being  men  in  society  and  not  by  virtue  of 
government — the  right  which  was  theirs  before  government 
was,  which  is  their  own  in  the  essential  meaning  of  the  term, 
and  "which  they  do  not  hold  by  any  'sub-infeudation,  but  by 
direct  homage  and  allegiance  to  the  Owner  and  Lord  of  all' ' 
(Stanley  Matthews1),  their  Creator,  who  has  endowed  them 
with  those  rights.  And  in  thus  declaring  the  impersonality  of 
government,  there  is  wholly  uprooted  every  vestige  of  any 
character  of  paternity  in  the  government. 

In  declaring  the  equality  of  all  men  in  the  the  possession  of 
these  inalienable  rights,  there  is  likewise  declared  the  strongest 
possible  safeguard  of  the  people.  For,  this  being  the  declara- 
tion of  the  people,  each  one  of  the  people  stands  thereby  pledged 
to  the  support  of  the  principle  thus  declared.  Therefore,  each 
individual  is  pledged,  in  the  exercise  of  his  own  inalienable 
right  to  life,  liberty,  and  the  pursuit  of  happiness,  so  to  act  as 
not  to  interfere  with  any  other  person  in  the  free  and  perfect 
exercise  of  his  inalienable  right  to  life,  liberty,  and  the  pursuit 
of  happiness.  Any  person  who  so  acts  as  to  restrict  or  inter- 
fere with  the  free  exercise  of  any  other  person's  right  to  life,  - 
or  liberty,  or  the  pursuit  of  happiness,  denies  the  principle,  to 
the  maintenance  of  which  he  is  pledged,  and  does  in  effect  sub- 
vert the  government.  For,  rights  being  equal,  if  one  may  so 
act,  every  other  one  may  do  so;  and  thus  no  man's  right  is 
recognized,  government  is  gone,  and  only  anarchy  remains. 

Therefore,  by  every  interest,  personal  as  well  as  general, 
private  as  well  as  public,  every  individual  among  the  people  is 
pledged  in  the  enjoyment  of  his  right  to  life,  or  liberty,  or  the 
pursuit  of  happiness,  so  to  conduct  himself  as  not  to  interfere 


1  In  argument  in  Cincinnati  case,  Minor  et  al.,  on  "Bible  in  the  Public  Schools," 
p.  241. 


54  THE    RIGHTS    OF    THE    PEOPLE. 

in  the  least  degree  with  the  equal  right  of  every  other  one  to 
the  free  and  full  exercise  of  his  enjoyment  of  life,  liberty,  and 
the  pursuit  of  happiness.  "For  the  rights  of  man,  as  man, 
must  be  understood  in  a  sense  that  can  admit  of  no  single 
exception;  for  to  allege  an  exception  is  the  same  thing  as  to 
deny  the  principle.  We  reject,  therefore,  with  scorn,  any  pro- 
fession of  respect  to  the'  principle  which,  in  fact,  comes  to  us 
clogged  and  contradicted  by  a  petition  for  an  exception.  .  .  . 
To  profess  the  principle  and  then  to  plead  for  an  exception,  let 
the  plea  be  what  it  may,  is  to  deny  the  principle,  and  it  is  to 
utter  a  treason  against  humanity.  The  rights  of  man  must 
everywhere  all  the  world  over  be  recognized  and  respected. ' ' 
—Isaac  Taylor.'1 

The  Declaration  of  Independence,  therefore,  announces  the 
perfect  principle  of  civil  government.  If  the  principle  thus 
announced  were  perfectly  conformed  to  by  all,  then  the  gov- 
ernment would  be  a  perfect  civil  government.  It  is  but  the 
principle  of  self-government — government  of  the  people,  by  the 
people,  and  for  the  people.  And  to  the  extent  to  which  this 
principle  is  exemplified  among  the  people,  to  the  extent  to 
which  the  individual  governs  himself,  just  to  that  extent  and  no 
further  will  prevail  the  true  idea  of  the  Declaration,  and  the 
republic  which  it  created. 

Such  is  the  first  grand  idea  of  the  American  Revolution. 
And  it  is  the  scriptural  idea,  the  idea  of  Jesus  Christ  and  of  God. 
Let  this  be  demonstrated. 

The  Declaration  holds  that  all  men  are  endowed  by  their 
Creator  with  certain  inalienable  rights.  Now  the  Creator  of 
all  men  is  the  God  and  Father  of  our  Lord  Jesus  Christ,  and 
"is  he  the  God  of  the  Jews  only?  is  he  not  also  of  the 
Gentiles?  Yes,  of  the  Gentiles  also."  And  as  he  "hath 
made  of  one  blood  all  nations  of  men  for  to  dwell  on  all  the  face 
of  the  earth"  (Acts  17:26),  "there  is  no  respect  of  persons 
with  God"  (Rom.  2:11). 

-Ouotcd  by  Stanley  Matthews,  Id.,  p.  242, 


THE    RIGHTS    OF   THE    PEOPLE.  55 

Nor  is  this  the  doctrine  of  the  later  Scripture  only;  it  is  the 
doctrine  of  all  the  Hook.  The  most  ancient  writings  in  the 
Book  have  these  words:  "If  I  did  despise  the  cause  of  my 
manservant  or  of  my  maidservant,  when  they  contended  with 
me;  what  then  shall  I  do  when  God  riseth  up?  and  when  he 
visiteth,  what  shall  I  answer  him  ?  Did  not  he  that  made  me 
in  the  womb  make  him?"  Job  31:13-15.  And,  "The 
Lord  your  God  is  God  of  gods,  and  Lord  of  lords,  a  great 
God,  a  mighty,  and  a  terrible,  which  regardeth  not  persons, 
nor  taketh  reward;  he  doth  execute  the  judgment  of  the  father- 
less and  widow,  and  loveth  the  stranger,  in  giving  him  food  and 
raiment.  Love  ye  therefore  the  stranger. "  Dent.  10:  17-19. 
"The  stranger  thatdwelleth  with  you  shall  be  unto  you  as  one 
born  among  you,  and  thou  shalt  love  him  as  thyself."  Lev. 

All  men  are  indeed  created  equal,  and  are  endowed  by 
their  Creator  with  certain  inalienable  rights. 

And  this  is  the  American  doctrine, — the  doctrine  of  the 
Declaration  of  Independence.  In  the  discussions  which 
brought  forth  the  Declaration  and  developed  the  Revolution, 
the  doctrine  found  expression  in  the  following  forceful  and  elo- 
quent words: — 

"  Government  is  founded  not  on  force,  as  was  the  theory  of 
Hobbes;  nor  on  compact,  as  was  the  theory  of  Locke  and  of  th® 
revolution  of  1688;  nor  on  property,  as  was  asserted  by  Harrington. 
It  springs  from  the  necessities  of  our  nature,  and  has  an  everlasting 
foundation  in  the  unchangeable  will  of  God.  Man  came  into  the  world 
and  into  society  at  the  same  instant.  There  must  exist  in  every 
earthly  society  a  supreme  sovereign,  from  whose  final  decision  there 
can  be  no  appeal  but  directly  to  heaven.  This  supreme  power  is 
originally  and  ultimately  in  the  people;  and  the  people  never  did  in 
fact  freely,  nor  can  rightfully  make  unlimited  renunciation  of  this 
divine  right.  Kingcraft  and  priestcraft  are  a  trick  to  gull  the  vulgar. 
The  happiness  of  mankind  demands'  that  this  grand  and  ancient  alli- 
ance should  be  broken  off  forever. 

"  The  omniscient  and  omnipotent  Monarch  of  the  universe  has, 


56  THE    RIGHTS    OF    THK    PKOPLK. 

by  the  grand  charter  given  to  the  human  race,  placed  the  end  of  go\ 
ernment  in  the  good  of  the  whole.  The  form  ot"  government  is  left  to 
the  individuals  of  each  society;  its  whole  superstructure  and  adminis- 
tration should  be  conformed  to  the  law  of  universal  reason.  There 
can  be  no  prescription  old  enough  to  supersede  the  law  of  nature  and 
the  grant  of  God  Almighty,  who  has  given  all  men  a  right  to  be  free. 
If  every  prince  since  Nimrod  had  been  a  tyrant,  it  would  not  prove  a 
right  to  tyrannize.  The  administrators  of  legislative  and  executive 
authority,  when  they  verge  toward  tyranny,  are  to  be  resisted;  if  they 
prove  incorrigible,  are  to  be  deposed. 

"  The  first  principle  and  great  end  of  government  being  to  provide 
for  the  best  good  of  all  the  people,  this  can  be  done  only  by  a  supreme 
legislative  and  executive,  ultimately  in  the  people,  or  whole  commu- 
nity, where  God  has  placed  it;  but  the  difficulties  attending  a  univer- 
sal congress  gave  rise  to  a  right  of  representation.  Such  a  transfer  of 
the  power  of  the  whole  to  a  few  was  necessary;  but  to  bring  the  pow- 
ers of  all  into  the  hands  of  one  or  some  few,  and  to  make  them  hered- 
itary, is  the  interested  work  of  the  weak  and  the  wicked.  Nothing  but 
life  and  liberty  are  actually  hereditable.  The  grand  political  problem 
is  to  invent  the  best  combination  of  the  powers  of  legislation  and  exe- 
cution. They  must  exist  in  the  State,  just  as  in  the  revolution  of  the 
planets;  one  power  would  fix  them  to  a  center,  and  another  carry 
them  off  indefinitely;  but  the  first  and  simple  principle  is  EQUALITY 
and  THE  POWER  OF  THE  WHOLE.  .  .  . 

"The  British  colonists  do  not  hold  their  liberties  or  their  lands  by 
so  slippery  a  tenure  as  the  will  of  the  prince.  Colonists  are  men,  the 
common  children  of  the  same  Creator  with  their  brethren  of  Great 
Britain.  The  colonists  are  men;  the  colonists  are  therefore  freeborn; 
for,  by  the  law  of  nature,  all  men  are  freeborn,  white  or  black.  No 
good  reason  can  be  given  for  enslaving  those  of  any  color.  Is  it  right 
to  enslave  a  man  because  his  color  is  black,  or  his  hair  short  and 
curled  like  wool,  instead  of  Christian  hair  ?  Can  any  logical  inference 
in  favor  of  slavery  be  drawn  from  a  flat  nose  or  a  long  or  short  face  ? 
The  riches  of  the  West  Indies,  or  the  luxury  of  the  metropolis,  should 
not  have  weight  to  break  the  balance  of  truth  and  justice.  Liberty  is 
the  gift  of  God,  and  cannot  be  annihilated. 

"  Nor  do  the  political  and  civil  rights  of  the  British  Colonies  rest  on 
a  charter  from  the  crown.  Old  Magna  Charta  was  not  the  beginning 
of  all  things,  nor  did  it  rise  on  the  borders  of  chaos  out  of  the  unformed 
mass.  A  time  may  come  when  Parliament  shall  declare  every  Amer- 
ican charter  void;  but  the  natural,  inherent,  and  inseparable  rights  of 
the  colonists,  as  men  and  as  citizens,  can  never  be  abolished.  .  ,  , 


THK    RIGHTS    OF    THE    PEOPLE.  57 

The  world  is  at  the  eve  of  the  highest  scene  of  earthly  power  and 
grandeur  that  has  ever  yet  been  displayed  to  the  view  of  mankind. 
Who  will  win  the  prize,  is  with  God.  But  human  nature  must  and 
will  be  rescued  from  the  general  slavery  that  has  so  long  triumphed 
over  the  species.  "—James  Otis* 

Thus  spoke  an  American  "for  his  country  and  for  the 
race, ' '  bringing  to  ' '  the  conscious  intelligence  of  the  people 
the  elemental  principles  of  free  government  and  human  rights. ' ' 
Outside  of  the  theocracy  of  Israel,  there  never  has  been  a  ruler 
or  an  executive  on  earth  whose  authority  was  not,  primarily  or 
ultimately,  expressly  or  permissively,  derived  from  the  people. 

The  conclusion  of  the  whole  matter,  the  end  of  all  that  can 
be  said,  is  that,  where  the  Declaration  of  Independence  says 
that  governments  derive  their  just  powers  from  the  consent  of 
the  governed,  it  asserts  THE  ETERNAL  TRUTH  OF  GOD. 

In  a  previous  chapter  we  have  shown  that  the  Constitu- 
tion of  the  United  States  is  the  only  form  of  government  that 
has  ever  been  on  earth  which  is  in  harmony  with  the  principle 
announced  by  Christ,  demanding  of  men  only  that  which  is 
Caesar's  and  refusing  to  enter  in  any  way  into  the  field  of  man's 
relationship  to  God.  This  Constitution  originated  in  the  prin- 
ciples of  the  Declaration  of  Independence,  and  here  we  have 
found  that  the  Declaration  of  Independence,  on  this  point, 
simply  asserts  the  truth  of  God.  The  American  people  do 
not  half  appreciate  the  value  of  the  Constitution  under  which 
they  live.  They  do  not  honor  in  any  fair  degree  the  noble 
men  who  pledged  their  lives,  their  fortunes,  and  their  sacred 
honor,  that  these  principles  might  be  the  heritage  of  posterity. 
All  honor  to  these  noble  men!  All  integrity  to  the  principles 
of  the  Declaration  of  Independence!  All  allegiance  to  the 
Constitution  as  it  was  made,  which  gives  to  Caesar  all  his  due, 
and  leaves  men  free  to  render  to  God  all  that  he,  in  his  holy 
word,  requires  of  them ! 

So  much  for  the  principle. 


8 Quoted  in  Bancroft's  "History  of  the  United  States,"   Vol.  Ill,  chapter   7,  par. 

21-41. 


CHAPTER  IT. 


HOW    THE    UNITED    STATES    BECAME    A    NATION. 

WHEN  the  fathers  of  '76  had  declared  that  "these  Colo- 
nies are,  and  of  right  ought  to  be,  free  and  independent 
States,"  Britain  did  not  agree  with  the  proposition,  and  conse- 
quently it  had  to  be  proved.  In  the  war  from  1776-1783,  the 
proposition  was  so  fully  demonstrated  that  Britain  and  all  other 
nations  admitted  its  entire  truthfulness. 

No  sooner  was  this  question  settled,  however,  than  dangers, 
unrealized  until  now,  threatened  the  very  existence,  not  only 
of  the  union  of  the  thirteen  States,  but  of  the  separate  States 
themselves.  When  the  question  had  been  settled  that  these 
Colonies  were  and  of  right  ought  to  be  free  and  independent 
States,  then  free  and  independent  States  was  precisely  what 
they  were.  There  were  thirteen  of  them,  and  each  one  of  the 
thirteen  was  as  entirely  free  and  independent  of  all  the  others, 
as  were  the  whole  thirteen  free  and  independent  of  Great  Brit- 
ain. Each  of  the  thirteen  States  was  as  free  and  independent 
of  any  or  all  of  the  others,  as  though  it  stood  alone  on  this  con- 
tinent. 

True,  articles  of  confederation  had  been  entered  into  under 
which  a  Congress  acted,  but  the  Congress  had  no  real  power. 
It  could  recommend  to  the  States  measures  to  be  carried  into 
effect,  but  the  States  could  and  did  do  just  as  they  pleased  as 
to  paying  any  attention  to  the  recommendations.  If  the 
measure  suited  them,  they  would  act  upon  it;  but  if  not,  they 
would  not.  And  if  it  suited  part  of  them  and  did  not  suit  the 
(58) 


HOW  THE  UNITED  STATES  BErAME  A   NATION.  59 

rest,  even  if  it  met  the  approval  of  all  but  one,  only  the  ones 
that  chose  would  comply  with  the  recommendation,  and  as  to 
the  others,  or  the  other  one,  there  was  no  power  on  earth 
that  could  require  them  or  it  to  act  with  the  States  that  chose 
to  comply.  Washington  described  the  situation  by  saying, 
"We  are  one  nation  to-day,  and  thirteen  to-morrow."  This 
is  the  exact  truth.  Practically  they  were  thirteen  independent 
nations,  just  as  those  of  Europe  are. 

It  was  soon  found  that  they  could  not  long  exist  with  such 
a  fast  and  loose  order  of  things  as  that.  By  their  enemies 
prophecies  were  frequent  of  "the  downfall  of  the  United 
States,"  and,  indeed,  the  signs  were  so  abundant  and  omi- 
nous that  their  friends  were  compelled  to  fear  that  this  would 
certainly  result.  As  soon  as  peace  with  Britain  had  been 
settled,  Washington,  Jefferson,  Madison,  and  other  prominent 
ones,  began  to  agitate  for  a  federal  government,  a  national 
power.  Washington  "had  hardly  reached  home  from  the 
war"  before  he,  in  a  letter  to  the  governor  of  Virginia,  Jan- 
uary 1 8,  1784,  stated  the  situation  and  the  great  need  of  the 
country  in  the  following  forcible  words: — 

4 'The  prospect  before  us  is  fair.  I  believe  all  things  will  come 
right  at  last,  but  the  disinclination  of  the  States  to  yield  competent 
powers  to  Congress  for  the  federal  government  will,  if  there  is  not 
a  change  in  the  system,  be  our  downfall  as  a  nation.  This  is  as  clear 
to  me  as  A,  B,  C.  We  have  arrived  at  peace  and  independency  to 
very  little  purpose  if  we  cannot  conquer  our  own  prejudices.  The 
powers  of  Europe  begin  to  see  this,  and  our  newly  acquired  friends, 
the  British,  are  already  and  professedly  acting  upon  this  ground,  and 
wisely,  too,  if  we  are  determined  to  persevere  in  our  folly.  They 
know  that  individual  opposition  to  their  measures  is  futile,  and  boast 
that  we  are  not  sufficiently  united  as  a  nation  to  give  a  general  one. 
Is  not  the  indignity  of  this  declaration,  in  the  very  act  of  peace- 
making and  conciliation,  sufficient  to  stimulate  us  to  vest  adequate 
powers  in  the  sovereign  of  these  United  States  ? 

"An  extension  of  federal  powers  would  make  us  one  of  the  most 
wealthy,  happy,  respectable,  and  powerful  nations  that  ever  inhab- 


!•:  UNITED  STATKS  I;I-;CAMK  A  NATION.  61 

ilccl  the  terrestrial  globe.  Without  them  [federal  powers]  we  shall 
soon  be  everything-  which  is  the  direct  reverse.  I  predict  the  worst 
consequences  from  a  half-starved,  limping  government,  always  mov- 
ing upon  crutches  and  tottering  at  every  step." — History  of  the 
Constitution  of  the  United  States,  Bancroft,  Vol.  I,  p.  /^f.1 

Nearly  the  end  of  the  same  year,  December  14,  1784, 
"the  French  minister  at  Versailles"  wrote  as  follows: — 

"The  American  confederation  has  a  strong  tendency  to  disso- 
lution. It  is  well  that  on  this  point  we  have  neither  obligations  to 
fulfill  nor  any  interest  to  cherish." — M.,  p.  167. 

In  November,  1785,  during  a  discussion  in  the  General 
Assembly  of  Virginia  over  the  question  of  an  extension  of 
power  to  a  federal  government,  Washington  was  asked  for 
suggestions,  to  which,  November  30,  he  replied: — 

"  The  proposition  is  self-evident.  We  are  either  a  united  people 
or  we  are  not  so.  If  the  former,  let  us  in  all  matters  of  national  con- 
cern act  as  a  nation  which  has  a  national  character  to  support."  "  If 
the  States  individually  attempt  to  regulate  commerce,  an  abortion  or 
a  many-headed  monster  will  be  the  issue.  If  we  consider  ourselves, 
or  wish  to  be  considered  by  others,  a  united  people,  why  not  adopt 
the  measures  which  are  characteristic  of  it,  and  support  the  honor 
and  dignity  of  one  ?  If  we  are  afraid  to  trust  one  another  under  quali- 
fied powers,  there  is  an  end  of  the  union." — Id- ,  p.  251. 

At  the  suggestion  of  the  Legislature  of  Maryland  to  the 
General  Assembly  of  Virginia,  in  December,  1785,  a  resolution 
was  passed  by  that  body  January  21,  1786,  "proposing  that 
commissioners  from  all  the  States  should  be  invited  to  meet 
and  regulate  the  restrictions  on  commerce  for  the  whole.  "- 
Id.,  p.  253.  Madison  was  the  first  named  of  the  commis- 


1  The  quotations  from  Bancroft  herein  throughout  are  taken  directly  from  his 
"  History  of  the  Formation  of  the  Constitution  of  the  United  States."  The  same 
quotations,  however,  precisely  as  here  given,  can  be  found  in  Vol.  VI  of  his  latest 
revision  of  his  "  History  of  the  United  States,"  so  that  anyone  who  has  access  to  his 
"History  of  the  United  States,"  needs  not  his  "History  of  the  Formation  of  the  Consti- 
tution of  the  United  States."  This  history  of  the  Constitution  is  practically  only  a 
reprint  of  the  last  volume  of  his  "  History  of  the  United  States,"  with  the  addition  of 
a  vast  number  of  letters  of  the  men  of  the  times. 


02  THE   Ricirrs  OF  THE  PEOPLE. 

sioners.of  Virginia;  Annapolis,  Md.j  was  named  as  the  place, 
and  "the  first  Monday  in  September,1'  1786,  the  time,  of  the 
meeting.  In  accepting  the  invitation  New  Jersey  empowered 
her  commissioners  "to  consider  how  far  a  uniform  system  in 
their  commercial  regulations  and  OTHER  IMPORTANT  MATTERS 
might  be  necessary  to  the  common  interest  and  permanent 
harmony  of  the  several  States,"  and  these  "other  important 
matters  "  turned  out  to  be  definite  instructions  "  to  be  content 
with  nothing  less  than  a  new  federal  government !." — Id.,  pp. 
257,  268. 

In  February,  1786,  the  Congress  of  the  confederation, 
after  having  discussed  for  two  clays  the  many  and  increasing 
difficulties  which  it  was  compelled  to  meet,  referred  the  subject 
to  a  committee.  After  deliberating  five  days  the  committee, 
February  15,  made  their  report.  After  stating  the  chief  dif- 
ficulties the  report  concluded  as  follows: — 

"After  the  most  solemn  deliberation,  and  under  the  fullest  con- 
viction that  the  public  embarrassments  are  such  as  above  represented, 
and  that  they  are  daily  increasing,  the  committee  are  of  opinion  that 
it  has  become  the  duty  of  Congress  to  declare -most  explicitly  that 
the  crisis  has  arrived  ivhen  the  people  of  the  United  States,  by  whose 
will  and  for  whose  benefit  the  federal  government  was  instituted, 
must  decide  whether  they  will  support  their  rank  as  a  nation  by  main- 
taining the  public  faith  at  home  and  abroad,  or  whether,  for  want  of  a 
timely  exertion  in  establishing  a  general  revenue,  and  thereby  giving 
strength  to  the  confederacy,  they  will  hazard  not  only  the  existence 
of  the  Union,  but  of  those  great  and  invaluable  privileges  for  which 
they  have  so  arduously  and  so  honorably  contended."— /</.,  255. 

Yet,  after  this  strong  and  pointed  report,  the  Congress 
failed  to  take  any  decisive  steps  toward  the  relief  and  safety  of 
the  country.  "The  discussion  brought  Congress  no  nearer 
to  the  recommendation  of  a  general  convention.  Its  self-love 
refused  to  surrender  its  functions,  least  of  all  on  the  ground  of 
its  own  incapacity  to  discharge  them." — Id. ,  p.  259.  The 
effect  of  this  report,  however,  was  such  that  ' '  far  and  wide  a 


HOW  THK  UNITED  STATES  BECAME  A  XAT1OX.  63 

general  convention  was  become  the  subject  of  thought,  and  'a 
plan  for  it  was  forming,   though    it  was  as    yet  immature.'  ' 
— Id. ,  p.  256. 

Commissioners  were  not  present  at  the  Annapolis  Con- 
vention from  all  the  States,  but  such  as  were  present  unani- 
mously adopted  a  report  to  Congress  asking  that  body  to  use 
its  endeavors  to  secure  a  meeting  of  commissioners  from  all  the 
States,  "to  meet  at  Philaclejphia  on  the  second  Monday  of 
May  [1787]  to  consider  the  situation  of  the  United  States," 
etc. — Id.,  p.  268.  This  recommendation  was  not  adopted  by 
Congress,2  so  that  in  itself  that  was  the  end  of  this  particular 
effort.  Meanwhile  the  difficulties  and  dangers  of  the  country 
had  multiplied,  and  the  impotency  of  Congress,  as  it  then 
existed,  to  deal  with  them  was  becoming  more  and  more 
apparent. 

In  this  crisis  Madison,  who  had  been  all  along  a  tireless 
worker  for  the  new  federal  government,  for  a  national  power 
which  should  be  really  such,  stepped  boldly  forward  and 
appealed  to  "the  people  of  America"  to  take  the  necessary 
steps  without  the  lead  of  Congress.  He  carried  in  the  Gen- 
eral Assembly  of  Virginia,  November,  1786,  the  unanimous 
indorsement  of  the  recommendation  of  the  Annapolis  con- 
vention, with  the  following  preamble,  written  by  himself: — 


2  Mr.  Bryce  ("American  Commonwealth,"  chapter  3,  par.  4,  edition  1895)  says 
that  Congress  "approved  "  this  report  "and  recommended  the  States  to  send  dele- 
gates," etc.  This  seems,  however,  certainly  to  be  a  mistake.  Bancroft  says  that  "a 
grand  committee  of  the  seventh  Congress  reported,  in  February  [1787],  by  a  bare 
majority  of  one,"  approving  the  report  of  the  Annapolis  convention,  and  strongly 
recommending  "to  the  different  Legislatures  to  send  forward  delegates,"  etc.,  "but 
that  they  never  ventured  to  ask  for  a  vote  upon  their  report." — History  of  the  Con- 
stitution, Vol.  I,  p.  273.  I  have  not  access  myself  to  the  original  documents,  so  as 
positively  to  decide  this  contradiction  between  these  two  eminent  authors;  but,  as 
Mr.  Bancroft's  account  is  so  full  and  circumstantial,  I  have  no  hesitation  in  accepting 
it  in  preference  to  Mr.  Bryce's  statement.  I  must  believe  that  Mr.  Bryce  has,  from 
some  cause,  overlooked  this  failure  of  Congress  to  approve  the  Annapolis  report,  and 
confounded  the  recommendation  that  Congress  did  finally  make  with  this  one  that  it 
did  not  make. 


64  THE    RIGHTS    OF    THE    PEOPLE. 

"The  commissioners  who  assembled  at  Annapolis,  on  the  four- 
teenth day  of  September  last,  for  the  purpose  of  devising  and  report- 
ing the  means  of  enabling  Congress  to  provide  effectually  for  the 
commercial  interests  of  the  United  States,  have  represented  the  neces- 
sity of  extending  the  revision  of  the  federal  system  to  all  Us  defects, 
and  have  recommended  that  deputies  for  that  purpose  be  appointed 
by  the  several  Legislatures,  to  meet  in  convention  in  the  city  of  Phila- 
delphia on  the  second  day  of  May  next — a  provision  preferable  to  a 
discussion  of  the  subject  in  Congress,  where  it  might  be  too  much 
interrupted  by  ordinary  business,  and  where  it  would,  besides,  be 
deprived  of  the  counsels  of  individuals  who  are  restrained  from  a  seat 
in  that  assembly. 

"  The  general  assembly  of  this  commonwealth  [Virginia],  taking 
into  view  the  situation  of  the  confederacy,  as  well  as  reflecting  on  the 
alarming  representations  made  from  time  to  time  by  the  United  States 
in  Congress  partictilarly  in  their  act  of  the  fifteenth  day  of  February 
last,  can  no  longer  doubt  that  a  crisis  is  arrived  at  which  the  people  oj 
America  are  to  decide  the  solemn  question  whether  they  will,  by  wise 
and  magnanimous  efforts,  reap  the  fruits  of  independence  and  of 
union;  or  whether,  by  giving  way  to  unmanly  jealousies  and  prjeudices, 
or  to  partial  and  transitory  interests,  they  will  renounce  the  blessings 
prepared  for  them  by  the  Revolution. 

"The  same  noble  and  extended  policy,  and  the  same  fraternal  and 
affectionate  sentiments  which  originally  determined  the  citizens  of  this 
commonwealth  to  unite  with  their  brethren-  of  the  other  States  in  estab- 
lishing a  federal  government,  cannot  but  be  felt  with  equal  force  now 
as  motives  to  lay  aside  every  inferior  consideration,  and  to  concur  in 
such  further  concessions  and  provisions  as  may  be  necessary  to  secure 
the  objects  for  which  that  government  was  instituted,  and  to  render 
the  United  States  as  happy  in  peace  as  they  have  been  glorious  in 
war." — Id., pp.  271,  272. 

It  was  as  late  as  the  middle  of  November,  1786,  when  this 
was  passed  by  the  Virginia  Assembly.  As  soon  as  New  Jersey 
received  the  news,  she  endorsed  the  action,  November  23;  in 
December,  Pennsylvania  joined  these  two;  in  January,  North 
Carolina,  and  in  February,  1787,  Delaware  joined  the  former 
three.  Congress,  seeing  how  the  tide  was  moving,  thought  it 
best  to  move  also;  and  accordingly  thought  to  maintain  its 


HOW  THE  UNITED  STATES  BECAME  A  NATION.  65 

dignity  by  totally  ignoring  all  that  had  been  done  and  gravely 
recommending  precisely  such  a  convention  as  was  going  to 
meet,  and  also  recommending  it  to  meet  in  the  same  place  and 
on  the  identical  day.  One  after  another  of  the  remaining 
States  fell  into  line,  except  Rhode  Island,  which  never  did. 
And  so  only  twelve  States  had  any  part  in  the  work  of  the  con- 
vention that  created  the  national  government  under  which  we 
live. 

As  soon  as  it  became  apparent  that  the  convention  would 
certainly  assemble,  Madison  began  to  prepare  an  outline  of  a 
constitution  for  the  expected  new  government,  ( 'and,  in  advance 
of  the  federal  convention,  he  had  sketched  for  his  own  use  and 
that  of  his  friends,  and  ultimately  of  the  convention,  a  thor- 
oughly comprehensive  constitutional  government  for  the 
Union. "  — Id.,  p.  278. 

The  delegates  were  slow  in  arriving,  and  it  was  the  2Qth  of 
May,  1787,  before  the  convention  was  fully  organized  for  busi- 
ness. The  regular  business  of  the  convention  was  begun  by 
Randolph,  the  governor  of  Virginia,  in  these  words: — 

"  To  prevent  the  fulfillment  of  the  prophecies  of  the  downfall  of 
the  United  States,  it  is  our  duty  to  inquire  into  the  defects  of  the  con- 
federation and  the  requisite  properties  of  the  government  now  to  be 
framed,  the  danger  of  the  situation,  and  the  remedy." — Id.,  Vol.  77, 
p.  jo. 

After  a  few  further  remarks  he  proposed  for  a  working- 
basis  for  a  constitution,  the  outline  that  had  been  drawn  by 
Madison,  and  to  which,  with  some  amendments  and  alterations, 
the  whole  Virginia  delegation  had  agreed. 

The  convention  went  steadily  on  with  its  work,  and  on 
September  17,  1787,  with  the  unanimous  consent  of  the  repre- 
sentatives of  the  eleven  States  present,  there  was  completed 
and  signed  the  Constitution  of  the  United  Slates  as  it  stands, 
from  the  ( '  Preamble  ' '  down  to  ' '  Amendments. ' ' 


66  TIII-:  RIGHTS  OF  THE  PEOPLE. 

Not  all  who  signed  it,  however,  were  satisfied  with  it. 
Nevertheless,  those  who  were  not  entirely  favorable  to  it,  signed 
it  because  it  was  the  only  course  in  which  there  lay  any  hope. 
Though  dissatisfied  with  it,  they  accepted  it  in  order  to  escape 
a  much  worse  fate  than  anything  under  it  could  possibly  be. 

Charles  Pinckney,  of  South  Carolina,  said: — 

11  I,  too,  object,  to  the  power  ot  a  majority  of  Congress  over  com- 
merce, hut  apprehending  the  danger  of  a  general  confusion,  and  an 
ultimate  decision  by  the  sword,  I  shall  give  the  plan  my  support." 
—Id. ,  p.  218. 

( louverneur  Morris,  of  Pennsylvania,  remarked: — 

"  f,  too,  had  objections;  but,  considering  the  present  plan  the  best 

that  can  be  obtained,  I  shall  take  it  with  all  its  faults.  The  moment 
it  goes  forth,  the  great  question  will  be,  Shall  there  be  a  national 
government,  or  a  general  anarchy?" — Id.,  p.  220. 

Alexander  Hamilton  signed  with  the  following  explana- 
tion:— 

"  No  man's  ideas  are  more  remote  from  the  plan  than  my  own  are 
known  to  be;  but  is  it  possible  to  deliberate  between  anarchy  and 
convulsion  on  the  one  side,  and  the  chance  of  good  to  be  expected 
from  the  plan  on  the  other  ?  " — Id. 

And  after  the  proposed  constitution  had  been  sent  forth  to 
the  people,  for  their  consideration,  Washington  sought  further 
to  disarm  opposition  by  a  letter  in  which  he  used  the  following 
words :  — 

"  My  decided  opinion  is  that  there  is  no  alternative  between  the 
adoption  of  the  proceedings  of  the  convention  and  anarchy.     . 
The  Constitution  or  disunion  is  before  us  to  choose  from." — Id.,  pp. 
279,  280. 

So  well  was  this  situation  understood  outside  of  the  country, 
as  well  as  by  these  leading  men  in  the  country,  that  Great 
Britain  was  really  considering  whether  she  should  not  adminis- 
ter upon  the  estate,  in  the  event  of  the  convention  failing  to 


HOW  THE  UNITED  STATES  BECAME  A  NATION.  67 

come  to  any  agreement  upon  a  plan  of  government.  ' '  The 
ministry  of  England  harbored  the  thought  of  a  constitutional 
monarchy,  with  a  son  of  George  III.  as  king;  and  they  were 
not  without  alarm  lest  gratitude  to  France  should  place  on  an 
American  throne  a  prince  of  the  House  of  Bourbon." — Id. , 
Vol.  I,  p.  277. 

Thus,  and  foiv  these  reasons,  was  the  government  of  the 
United  States  created;  and  thus  the  United  States  became  a 
nation. 


CHAPTER  III. 

WHAT    IS    THE    NATION  ? 

THE  United  States — the  nation  indeed  — is  not  composed  of 
the  States.  The  original  thirteen  States  did  not  compose  the 
nation,  nor  do-the  forty-four  now  compose  it.  The  United 
States,  the  nation,  is  that  power,  that  system,  that  organiza- 
tion, above  all  the  States  and  distinct  from  them,  which  was 
created  to  perform,  in  behalf  of  the  States  and  the  people,  what 
neither  the  people,  nor  any  of  the  States,  nor  yet  all  the  States 
together,  could  do  for  themselves. 

In  the  facts  and  the  statements  presented  in  the  preceding 
chapter,  it  is  clear  enough  that  ' '  the  United  States ' '  before 
the  establishment  of  the  Constitution  were  not  a  nation.  There 
was  no  national  power;  there  was  no  national  action;  there 
was  no  national  character;  there  was  no  national  spirit.  This 
was  seen  and  expressed  by  the  friends  as  well  as  the  foes  of  the 
country. 

True,  when  the  thirteen  independent  States  were  firmly 
agreed  upon  any  measure  so  that  they  could  all  act  unreservedly 
together — as  in  the  war  for  their  independence— then^they  were 
powerful,  and  so  far  in  that  particular  measure  displayed 
somewhat  of  the  characteristics  of  a  nation.  But  after  such 
united  effort  had  secured  their  independence,  there  was  liter- 
ally not  a  single  question  upon  which  there  was  unanimity  of 
opinion  and  consequent  action,  such  as  could  display  any  of  the 
characteristics  of  a  nation. 

This  is  why  there  were  so  many  ' '  prophecies  of  the  down- 
fall'of  the  United  States;"  this  is  why  it  was  that  they  were 
"  one  nation  to-day,  and  thirteen  to-morrow;  "  and  this  is  why 
(68) 


69 

it  was  certainly  true  that  there  was  no  alternative  between 
anarchy  and  the  formation  of  a  national  government.  James 
Wilson,  of  Pennsylvania,  a  member  of  the  convention  which 
framed  the  Constitution  for  the  making  of  the  nation,  in  plead- 
ing for  the  approval  of  the  Constitution  by  the  Pennsylvania 
convention  called  for  that  purpose,  stated  the  case  thus : — 

"By  adopting  this  Constitution  zve  shall  become  a  nation;  we  are 
not  no~u  one." — Elliott' s  Debates,  Vol.  //,  p.  526,  quoted  by  Bryce, 
Am.  Com.,  chapter  j,  par.  S,  note. 

They  must  by  choice  become  a  nation,  or  else  without  their 
choice  they  would  become  nothing.  And  as  by  the  adoption  of 
the  Constitution  they  would  "  become  a  nation;"  as  with  the 
Constitution  there  would  be  a  nation,  while  without  it  there 
would  be  none;  it  is  perfectly  clear  that  THE  NATION  is  THAT 
ORDER  OF  GOVERNMENT,  that  system,  that  organization,  that 

f>ow:r,    WHICH    IS    DEFINED    IN    THE    CONSTITUTION    OF    THE 

UNITED  STATES. 

It  is  also  clear  that,  in  truth  and  in  fact,  the  nation  is  the 
United  States,  and  the  United  States  is  the  nation.  The 
nation  is  not  composed  of  the  States.  The  thirteen  States  did 
not  become  a  nation.  ^\\e  people  o>i  the  thirteen  States  created 
a  nation.  After  the  nation  had  been  created,  the  thirteen 
States  still  remained  intact  as  States.  The  nation  is  a  thing  in 
and  of  itself,  created  to  perform  what  could  not  be  performed 
without  it.  The  nation  is  a  government,  and  a  governmental 
system,  as  distinct  from  the  thirteen,  or  the  forty-four,  States, 
as  any  one  of  these  States  is  distinct  from  the  others.  As 
respects  the  States  and  the  nation,  they  are  not  one  govern- 
ment, nor  are  they  two  governments.  When  the  people  of 
the  thirteen  States  in  1787-1789  had  created  the  national  gov- 
ernment, there  was  not  then  only  one  government  in  this  coun- 
try, there  were  more  than  one.  There  were  then  more  than 
thirteen  governments — tJtere  were  FOURTEEN.  There  was  the 
United  States,  and  besides  this  there  were  still  the  thirteen 


70  THE    RIGHTS    OF    THE    PEOPLK. 

States;  there  was  the  national  government,  and  besides  this 
there  were  thirteen  State  governments,  making  fourteen  in  all. 
Now,  May,  1895,  there  is  the  national  government,  and  besides 
this  there  are  the  forty-four  State  governments,  making  forty- 
five  governments  in  the  country.  There  is  the  United  States, 
and  besides  this  there  are  the  forty-four  States.  But  the  United 
States,  the  nation,  is  ever  and  always  a  government  in  and  of 
itself,  distinct  from  all  State  governments.  This  distinction  is 
neatly  made  by  John  Fiske  in  the  following  pointed  sentences:— 
"  From  1776  to  1789  the  United  States  were  a  confederation.  After 
«  1789,  it  was  a  federal  nation." — Fiske 's  Civil  Government,  p,  234. 

The  distinction  here  drawn  between  the  United  States  u 
and  //  was,  tells  the  whole  story. 

The  United  States  is  not  as  this:  — 


WHAT    IS    THE 


That  is  as  they  were  before  1789,  while  they  were  a  con- 
federacy and  not  a  nation.  Nor  is  the  United  States  a  govern- 
mental band  drawn  through  the  existing  States  to  hold  them 
together,  as  though  it  were  this: — 


THE    RIGHTS   OF   THE    PEOPLE. 

The  United  States  is  as  neither  of  these.      It  is  as  this: — 


A  much  finer  conception,  and  perhaps  a  much  better  illus- 
tration, is  contained  in.  the  following  view,  presented  byBryce:1— 

"The  central  or  national  government  and  the  State  governments 
may  be  compared,  to  a  large  building  and  a  set  of  smaller  buildings 
standing  on  the  same  ground,  yet  distinct  from  each  other.  It  is  a 
combination  sometimes  seen  where  a  great  church  has  been  erected 
over  more  ancient  houses  of  worship.  First  the  soil  is  covered  by  a 
number  of  small  shrines  and  chapels,  built  at  different  times  and  in 
different  styles  of  architecture,  each  complete  in  itself^  Then  over 
them  and  including  all  in  its  spacious  fabric  there  is  reared  a  IK-W  pik-, 


1  My  rude  and  perhaps  even  crude  illustration  had  been  conceived  and  marked 
out  before  I  found  this  illustration  of  Mr.  Bryce's.  1  have  therefore  let  it  stand,  though 
his  is  much  the  better  one. 


WHAT    IS    THE    NATION?  73 

with  its  own  loftier  roof,  its  own  walls,  ...  its  own  internal  plan. 
The  identity  of  the  earlier  buildings  has,  however,  not  been  obliterated; 
and  if  the  later  and  larger  structure  were  to  disappear,  a  little  repair 
would  enable  them  to  keep  out  wind  and  weather,  and  be  again  what 
they  once  were,  distinct  and  separate  edifices.  So  the  American 
States  are  now  all  inside  the  Union,  and  have  become  subordinate  to 
it.  Yet  the  Union  is  more  than  the  aggregate  of  States,  and  the 
States  are  more  than  parts  of  the  Union." — The  American  Common- 
wealth, chapter  j,  par.  7,  edition  of  February ',  i8g$. 

The  United  States — the  nation- — is  a  government  distinct 
from  all  the  States,  outside  of  them,  and  above  them,  which 
was  created  to  do  for  the  States  and  for  the  people  what  neither 
the  States  nor  the  people  could  do-  for  themselves,  nor  yet  for 
one  another.  It  was  not  anything  within  their  boundaries  that 
troubled  any  of  the  thirteen  States;  it  was  altogether  those  of 
their  interests  which  reached  beyond  their  boundaries  that  caused 
the  perplexity.  For  just  as  soon  as  any  State  attempted  to 
follow  up  any  of  its  interests  which  reached  beyond  its  own 
boundaries,  it  entered  the  jurisdiction  of  another  power  equally 
independent  with  itself;  and  not  only  was  this  other  an  inde- 
pendent power,  but  with  respect  to  that  particular  thing  it 
might  be  a  hostile  power  as  well.  Consequently,  for  the  best 
interests  of  all,  it  was  essential  that  there  should  be  formed  a 
government  separate  and  distinct  from  all,  which,  in  behalf  of 
all,  should  have  jurisdiction  of  all  interests  which  should  extend 
beyond  the  boundaries  of  any  State. 

This,  in  brief,  defines  the  line  that  separates  between  the 
States  and  the  United  States,  and  between  the  jurisdiction  of 
the  State  governments  and  that  of  the  national  government. 
Wilson,  of  Pennsylvania,  who  helped  to  make  the  nation,  in 
explaining  to  the  Pennsylvania  convention  the  provisions  of 
the  Constitution,  clearly  denned  this  line  as  follows: — 

"The  convention  found  themselves  embarrassed  with  another 
difficulty  of  peculiar  delicacy  and  importance.  I  mean  that  of  drawing 
a  propef  line  between  the  national  government  and  the  governments 


74  THE    RIGHTS    OF   THE    PEOPLE. 

of  the  several  States.  Whatever  object  of  government  is  confined  in 
its  operation  and  effects  within  the  bounds  of  a  particular  State,  should 
be  considered  as  belonging  to  the  government  of  that  State.  What- 
ever object  of  government  extends  in  its  operation  or  effects  beyond 
the  bounds  of  a  particular  State,  should  be  considered  as  belonging 
to  the  government  of  the  United  States." — Bancroft's  History  of  the 
Formation  of  the  Constitution^  pp.  244,  245. 

Such  was  the  intention  of  the  framers  of  the  original 
Constitution.  Yet,  as  it  was  not  distinctly  expressed  in  the 
Constitution,  an  amendment  respecting  the  point  was  required. 
Consequently,  the  tenth  of  the  ten  amendments  that  were 
passed  in  regular  course  through  the  first  Congress  that  ever 
met  under  the  Constitution,  declares  as  follows: — 

"The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

Thus  in  all  matters  not  delegated  to  the  United  States,  nor 
prohibited  by  the  Constitution  to  the  States,  each  State  may 
do  fully  and  Ireely  just  as  it  pleases  within  its  own  boundaries ; 
while  in  any  matters  so  delegated  or  prohibited  it  has  nothing- 
whatever  to  do,  but  the  nation  in  these  things  has  power  to  do 
fully  and  freely  as  it  chooses.  The  nation  has  nothing  whatever  to 
do  with  any  matter  the  operation  and  effects  cf  which  lie  within 
the  boundaries  cf  any  State;  and  no  State  has  anything  what- 
ever to  do  with  any  matter  the  operation  or  effects  of  which 
reach  beyond  its  boundaries.  State  boundaries  are  no  more  a 
mark  of  the  limits  of  State  jurisdiction,  than  they  are  a  barrier 
to  the  exercise  of  the  national  power.  Thus  stands  the  line 
in  principle  between  the  States  and  the  United  States;  and  it 
is  described  in  words  in  the  tenth  amendment — that  the  powers 
not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  or  to 
the  people — and  these  powers  are  to  be  exercised  exclusively 
by  the  States  or  by  the  people,  never  by  the  United  States — 


WHAT    IS    THK    NATION?  75 

never   by    the    nation.      Abraham    Lincoln  stated    this    point 
thus : — 

"Each  community,  or  a  State,  has  a  right  to  do  exactly  as  it  pleases 
with  all  the  concerns  within  that  State  that  interfere  with  the  right  of 
no  other  State;  and  the  general  government,  upon  principle,  has  no 
right  to  interfere  with  anything  other  than  that  general  class  of  things 
that  does  concern  the  whole." — Chicago  Speech,  July  10,  1858,  l^olit- 
•ical  Speeches  and  Debates,  p.  Sj. 

And  Bancroft  states  this  fact  as  follows: — 

"  The  United  States  of  America,  .  .  .  within  its  own  sphere, 
is  supreme  and  self-supporting.  For  this  end  it  has  its  own  Legislature 
to  make  enactments;  its  own  functionaries  to  execute  them;  its  own 
courts;  its  own  treasury;  and  it  alone  may  have  an  army  and  a  navy- 
All  sufficient  powers  are  so  plainly  given  that  there  is  no  need  of  striv- 
ing for  more  by  straining  the  words  in  which  they  are  granted,  beyond 
their  plain  and  natural  import. 

"Aside  from  the  sphere  of  the  federal  government,  each  S/a/e  is  in 
all  things  supreme,  not  by  grace,  but  of  right.  The  United  States  may 
not  interfere  with  any  ordinance  or  law  that  begins  and  ends  within  a 
Stale.  This  supremacy  of  the  States  in  the  powers  which  have  nof 
heai  granted,  is  as  essentially  a  part  of  the  system  as  the  supremacy 
of  the  general  government  in  its  sphere. 

"The  powers  of  government  are  not  divided  between  them;  they 
are  distributed;  so  that  there  need  he  no  collision  in  their  exercise." — 
History  of  the  Constitution,  Vol.  //,  p.  jj2. 

Thus  "the  acceptance  of  the  Constitution  of  1789  made 
the  American  people  a  nation." — Bryce,  Am.  Coin.,  first  sen- 
tence of  chapter  4.  And  that  thing,  that  governmental 
organization,  which  was  created  by  the  people,  which  is  defined 
and  regulated  in  the  Constitution  of  1789 — THAT  is  THE  NA- 
TION. 


CHAPTER   IV. 


WHO   MADF.    Till:    NATION? 

WE  have  seen  how  that,  after  long  and  anxious  waiting,  and 
after  repeated  efforts  to  get  the  States  or  the  Congress  to  call 
a  general  convention,  it  was  only  when  an  appeal  was  made  to 
the  "people  of  America"  that  the  movement  for  the  creation 
of  a  national  government  was  crowned  with  success.  It  was 
only  when  the  "people  of  America"  began  to  move  that  either 
Congress  or  the  States  could  be  brought  to  realize  that  they 
must  move. 

Providentially  and  logically,  rather  than  intentionally,  it 
was  not  in  the  proper  order  of  things  that  the  new  movement 
should  be  carried  out  either  by  the  States  as  such  or  by  the  Con- 
gress. It  was  the  doctrine  of  the  Declaration  that  rights  be- 
long to  the  people,  and  that  governments  "derive  their  just 
powers  from  the  consent  of  the  governed."  It  was  therefore 
only  the  clear  logic  of  the  Declaration  that  the  movement  for 
the  establishment  of  a  new  form  of  government  should  receive 
its  original  impulse  from  the  people  of  America,  rather  than  from 
the  governments  of  America. 

This  word,  ' '  the  people  of  these  United  States, ' '  '  'the  peo- 
ple of  America,"  which  was  rung  out  by  the  Committee  of 
Congress,  February  15,  and  by  Madison,  in  November,  1786, 
was  the  spring  of  all  that  followed  in  the  making  of  the  nation. 
It  was  the  keynote  to  which  the  ptean  of  the  liberty  and  the 
rights  of  the  people  in  government  was  to  be  sung  to  all  the 
world,  and  for  all  time. 
(76) 


WHO    MADE    THE    NATION?  77 

At  every  step  of  the  way  in  the  making  of  the  nation  the 
idea  was  never  lost  sight  of  that  it  was  ' '  the  people  of  these 
United  States,"  "the  people  of  America,"  and  not  the  States 
who  were  doing  it.  This  was  made  to  appear  in  the  published 
call  of  the  convention,  in  the  provision  that  when  the  Consti- 
tution should  have  been  framed  by  the  convention  and  agreed 
to  by  Congress,  it  was  to  be  established  and  made  of  force, 
not  by  the  Legislatures  of  the  States,  that  is,  not  by  the  States 
as  such,  but  by  conventions  in  the  States,  chosen  by  THE  PEO- 
PLE. For  Madison,  who  was  the  open  and  positive  leader  in 
the  movement,  '  'held  it  as  a  fixed  principle  that  the  new  system 
should  be  ratified  by  the  people  of  the  several  States,  so  that 
it  might  be  clearly  parayiount  to  their  individual  legislative 
authority." — Bancroft,  History  of  Constitution,  Vol.  I,  p.  278. 
How  certainly  this  principle  was  recognized,  and  h<>\\ 
strictly  it  was  followed  in  the  convention,  is  shown  by  a  remark- 
able fact.  And  it  is  this:  In  the  first  draft  of  the  Constitution,  as 
arranged  and  printed,  after  "more  than  two  months'"  deliber- 
ation, and  distributed  to  the  members,  the  preamble  ran  as 
follows : — 

"We.  the  people  of  the  Stales  [and  then'  followed  in  detail  the 
names  of  all  the  thirteen]  do  ordain,  declare,  and  establish  the  follow- 
ing Constitution  for  the  government  of  ourselves  and  our  posterity  "- 
—  Id.,  Vol.  II,  pp.  if 9,  120. 

But  when  the  Constitution  was  completed',  and  was  ready 
to  be  sent  forth  by  the  convention,  the  preamble  stood  thus: — 

"We,  the  people  of  the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic  tranquillity,  provide 
for  the  common  defense,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  ami 
establish  this  Constitution  ./bf  the  Ignited  States  of  America." 

Where  the  first  draft  said,  "We,  the  people  of  the  States," 
the  final  preamble  was  made  to  say",  "We,  the  people  of  the 
United  States:"  clearly  showing  that  the  question  had  been 


78  THE    RIGHTS    OF    THE    PEOPLE. 

discussed  and  decided  that  it  was  not  the  people  of  the  States 
as  such,  but  the  people  of  the  United  States  by  whom  this 
thing  was  done. 

Again,  where  the  first  draft  said,  "We,  the  people  of  the 
States,  do  ordain  and  establish  this  Constitution  for  the  govern- 
ment of  ourselves" — the  people  of  the  States — the  final  pre- 
amble was  made  to  say,  "We,  the  people  of  the  United  States, 
do  ordain  and  establish  this  Constitution  for  the  United  Slates 
of  America." 

It  is  true  that  the  delegates  in  the  convention  voted  by 
Stales,  in  accordance  with  the  forms  of  the  governments  as  they 
then  existed;  but  in  any  or  all  their  action  "they  did  not  pre- 
tend to  be  'the  people,'  and  could  ru>t  institute  a  general  gov- 
ernment in  its  name.  The  instrument  which  they  framed  was 
like  the  report  of  a  bill  beginning1  with  the  words  'be  it  en 
acted,'  though  the  binding  enactment  a \vaits  the  will  of  the  Leg 
islature;  or  like  a  deed  drawn  up  by  an  attorney  for  several 
parties  awaiting  its  execution  by  the  principals  themsches. 
Only  by  its  acceptance  could  the  words,  'We,  the  people  ol 
the  United  States,'  become'  words  of  truth  and  power."- — Id.,  p. 
208.  And  when  afterwards  in  the  Pennsylvania  convention 
for  the  ratification  of  the  Constitution,  it  was  charged  by  one 
of  the  members  that  the  "federal  convention  had  exceeded 
the  powers  given  them  by  their  respective  Legislatures,"  James 
Wilson  answered  in  the  following  emphatic  words: — 

"The  federal  convention  did  not  proceed  at  a/I  upon  the  powers 
given  them  by  the  States,  but  upon  original  principles;  and,  having 
framed  a  Constitution  which  they  thought  would  promote  the  happi- 
ness of  their  country,  they  have  submitted  it  to  their  [the  people's] 
consideration,  who  may  either  adopt  or  reject  it  as  they  please. "- 
Id.,  p.  246. 

In  the  convention  that  framed  the  Constitution  there  was 
even  "a  disinclination  to  ask  the  approbation  of  Congress" 
upon  the  result  of  their  labors,  though  this  was  not  acted  upon. 


\VHO    MADE    THE    NATION?  79 

Nevertheless  the  Constitution  was  not  to  be  put  to  the  risk 
of  defeat  by  being  submitted  to  Congress  for  a  vote  of  approval 
or  disapproval;  but  was  to  be  submitted  to  the  people  only,  for 
that  purpose.  This  was  made  clear  by  the  convention  in  its 
adoption,  September  10,  1787,  of  the  following  "directory 
resolution' ' : — 

"This  Constitution  shall  be  laid  before  the  United  States  in  Con- 
gress assembled;  and  it  is  the  opinion  of  this  convention  that  it  should 
be  afterwards  submitted  to  a  convention  chosen  in  each  State,  under 
the  recommendation  of  its  Legislature,  in  order  to  receive  the  ratifica- 
tion of  such  convention." — Id.,  pp.  205,  206. 

Later  the  "Committee  on  Style"  reported,  September  13, 
resolutions  "for  the  ratification  of  the  Constitution  through 
Congress,  by  conventions  of  the.  people  of  the  several  States;" 
and  in  this  report  was  embodied  the  above  '  'directory  resolu- 
tion." 

The  object  of  having  the  Constitution  pass  through  Con- 
gress and  the  Legislatures  of  the  respective  States,  yet  without 
allowing  them  to  act  in  approval  or  disapproval  upon  it,  was  to 
give  them  the  opportunity  of  proposing  amendments  if  they 
should  choose  to  do  so. 

The  Constitution  was  laid  before  Congress  September  20, 
1787,  and  on  the  28th  of  the  same  month  that  body  unani- 
mously resolved  "that  the  said  report,  with  the  resolutions  and 
letter  accompanying  the  same,  be  transmitted  to  the  several  Leg- 
islatures in  order  to  be  submitted  to  a  convention  of  delegates 
chosen  in  each  State  by  the  people  thereof  in  conformity  to  the 
resolves  of  the  convention." — Id. ,  p.  230. 

In  the  Pennsylvania  convention  for  the  ratification  of  the 
Constitution,  James  Wilson,  who  from  beginning  to  end  was 
a  master  spirit  in  the  framing  of  that  masterly  instrument, 
again  defined  its  principles,  November  24,  1787,  in  the  follow- 
ing sublime  passage: — 


80  THE    RIGHTS    OF    THE    PEOPLE. 

"  To  control  the  power  and  conduct  of  the  Legislature  by  an  over- 
ruling Constitution  limiting  and  superintending  the  operations  of  the 
legislative  authority,  was  an  improvement  in  the  science  and  practice 
of  government  reserved  to  the  United  States.  Oft  have  I  marked 
with  silent  pleasure  and  admiration  the  force  and  prevalence  through 
the  United  States  of  the  principle  that  the  supreme  power  resides  in 
the  people,  and  that  THEY  NEVER  PART  WITH  IT.  There  can  be  no 
disorder  in  the  community  but  may  here  receive  a  radical  cure.  Error 
in  the  Legislature  may  be  corrected  by  the  Constitution;  error  in  the 
Constitution,  by  the  peopJe.  The  streams  of  power  run  in  different 
directions,  but  they  all  originally  flow  from  one  abundant  fountain. 
In  this  Constitution  ALL  AUTHORITY  is  DERIVED  FROM  THE  PEOPLE." 
—Id.,  p.  2.15. 

And  finally,  after  the  people  of  the  United  States  through 
their  conventions  had  passed  upon  the  Constitution  as  origi- 
nally framed  and  submitted,  they  ratified  it,  but  yet  with  the 
addition  often  amendments,  two  of  which,  in  the  very  words  of 
that  supreme  law  itself,  define  the  rights  of  the  people.  The 
ninth  amendment  declares  that— 

"  The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people" 

And  the  tenth  amendment  declares  that — 

"The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively or  to  the  people." 

Thus  was  the  nation  made;  these  are  they  who  made  it; 
and  thus  the  government  of  the  United  States  of  America 
became,  and  is,  "a  GOVERNMENT  OF  THE  PEOPLE,  BY  THE 

PEOPLE,   AND  FOR  THE  PEOPLE." 

NOTE. 

Nothing  iii  this  chapter  is  to  be  construed  to  convey  the  idea  that 
in  the  action  of  "the  people  of  the  United  States"  the  States  are 
ignored.  Not  at  all.  The  people  of  the  United  States,  acting  as  such, 
do  not  act  as  a  whole,  but  in  divisions  according  to  their  respective 


WHO    MADE    THE    NATION?  8  I 

States.  The  government  of  the  United  States,  though  distinct  and 
separate  from  that  of  the  States,  is  yet  not  a  democracy  in  which  the 
people  act  in  a  mass;  but  it  is  as  truly  a  republic  in  which  the  people 
act  through  representatives,  as  is  the  government  of  the  States.  In 
all  things  in  which  the  people  act  as  the  people  of  the  United  States, 
they  do  so  through  representatives  chosen  by  themselves  from  within 
their  respective  States.  Even  the  President,  who,  more  than  any 
other,  is  the  representative  of  all  the  people,  is  not  directly  chosen — 
voted  for— by  the  people.  No;  the  people  in  their  respective  States 
vote  for  electors  chosen  from  among  themselves  in  their  respective 
States,  and  these  electors  elect  the  President.  In  all  things  the  form 
of  government,  whether  State  or  national,  is  republican;  that  is,  the 
form  in  which  the  people  govern  and  act  is  through  representatives 
chosen  by  themselves. 


CHAPTER  V. 


RELIGIOUS  RIGHT  IN  THE  UNITED  STATES. 

"ALL  men  are  created  equal,  and  are  endowed  by  their 
Creator  with  certain  unalienable  rights. ' '  The  first  and  great- 
est of  all  the  rights  of  men  is  religious  right.  Religion  is 
the  duty  which  men  owe  to  their  Creator,  and  the  manner  of 
discharging  it.  The  first  of  all  duties  is  to  the  Creator,  be- 
cause to  him  we  owe  our  existence.  Therefore  the  first  of  all 
commandments,  and  the  first  that  there  can  possibly  be,  is  this: 
"Hear,  O  Israel:  The  Lord  thy  God  is  one  Lord;  and  thou 
shalt  love  the  Lord  thy  God  with  all  thy  heart,  and  with  all 
thy  soul,  and  with  all  thy  mind,  and  with  all  thy  strength;  this 
is  the  first  commandment."  Mark  12  :  29,  30. 

This  commandment  existed  as  soon  as  there  was  an  intelli- 
gent creature  in  the  universe;  and  it  will  continue  to  exist  as 
long  as  there  shall  continue  one  intelligent  creature  in  the 
universe.  Nor  can  a  universe  full  of  intelligent  creatures 
modify  in  any  sense  the  bearing  that  this  commandment  has 
upon  any  single  one,  any  more  than  if  that  single  one  were  the 
only  creature  in  the  universe.  For  as  soon  as  an  intelligent 
creature  exists,  he  owes  his  existence  to  the  Creator.  And  in 
owing  to  him  his  existence,  he  owes  to  him  the  first  consider- 
ation in  all  the  accompaniments  and  all  the  possibilities  of  ex- 
istence. Such  is  the  origin,  such  the  nature,  and  such  the 
measure,  of  religious  right. 

Did,  then,  the  fathers  who  laid  the  foundation  of  this  na- 
(82) 


RELIGIOUS    RIGHT    IN    THE    UNITED    STATES.  83 

tion  in  the  rights  of  the  people — did  they  allow  to  this  right 
the  place  and  deference  among  the  rights  of  the  people  which, 
according  to  its  inherent  importance,  is  justly  its  due?  That  is, 
Did  they  leave  it  sacred  and  untouched  solely  between  man 
and  his  Creator? 

The  logic  of  the  Declaration  demanded  that  they  should; 
for  the  Declaration  says  that  governments  derive  ' '  their  just 
powersfrom  the  consent  of  the  governed. ' '  Governments ,  th  en , 
deriving  their  just  powers  from  the  consent  of  the  governed, 
can  never  of  right  exercise  any  power  not  delegated  by  the 
governed.  But  religion  pertains  solely  to  man's  relation  to 
God,  and  to  the  duty  which  he  owes  to  him  as  his  Creator, 
and  therefore  in  the  nature  of  things  it  can  never  be  delegated. 

It  is  utterly  impossible  for  any  person  ever,  in  any  degree, 
to  delegate  or  transfer  to  another  any  relationship  or  duty, 
or  the  exercise  of  any  relationship  or  duty,  which  he  owes  to 
his  Creator.  To  attempt  to  do  so  would  be  only  to  deny  God 
and  renounce  religion,  and  even  then  the  thing  would  not 
be  done;  for,  whatever  he  might  do,  his  relationship  and  duty 
to  God  would  still  abide  as  fully  and  as  firmly  as  ever. 

As  governments  derive  their -just  powers  from  the  governed; 
as  governments  cannot  justly  exercise  any  power  not  delegated; 
and  as  it  is  impossible  for  any  person  in  any  way  to  delegate 
any  power  in  things  religious;  it  follows  conclusively  that  the 
Declaration  of  Independence  logically  excludes  religion  in 
every  sense  and  in  every  way  from  the  jurisdiction  and  from 
the  notice  of  every  form  of  government  that  has  resulted  from 
that  Declaration. 

This  is  scriptural,  too.  For  to  the  definition  that  religion  is 
' '  the  recognition  of  God  as  an  object  of  worship,  love,  and 
obedience,"  the  Scripture  responds:  "  It  is  written,  as  I  live, 
saith  the  Lord,  every  knee  shall  bow  to  me,  and  every  tongue 
shall  confess  to  God.  So  then  every  one  of  us  shall  give  ac- 
count of  himself  to  God."  Rom.  14  :  n,  12. 


84  THE    RIGHTS    OF    THE    PEOPLE. 

To  the  statement  that  religion  is  "  man's  personal  relation 
of  faith  and  obedience  to  God, ' '  the  Scripture  responds,  ' '  Hast 
thou  faith?  have  it  to  thyself  before  God."  Rom.  14  :  22. 

And  to  the  word  that  religion  is  ' '  the  duty  which  we  owe  to 
our  Creator,  and  the  manner  of  discharging  it, ' '  the  Scripture 
still  responds,  ' '  For  we  must  all  appear  before  the  judgment 
seat  of  Christ;  that  everyone  may  receive  the  things  done  in 
his  body,  according  to  that  he  hath  done,  whether  it  be  good 
or  bad."  2  Cor.  5  :  10. 

No  government  can  ever  account  to  God  for  any  individ- 
ual. No  man  nor  any  set  of  men  can  ever  have  faith  for  an- 
other. No  government  will  ever  stand  before  the  judgment  seat 
of  Christ  to  answer  even  for  itself,  much  less  for  the  people  or  for 
any  individual.  Therefore,  no  government  can  ever  of  right 
assume  any  responsibility  in  any  way  in  any  matter  of  religion. 

Such  is  the  logic  of  the  Declaration,  as  well  as  it  is  the 
truth  of  Holy  Writ.  But  did  the  fathers  who  made  the  na- 
tion recognize  this  and  act  accordingly? — They  did.  And  the 
history  of  this  subject  runs  parallel,  step  by  step,  with  the  his- 
tory of  the  subject  of  the  fixing  of  the  civil  rights  of  the  peo- 
ple in  the  supreme  law — this  history  occurred  in  the  same  time 
precisely  as  did  that;  it  occurred  in  the  same  place  precisely 
as  did  that;  it  was  made  by  the  same  identical  men  who  made 
that  history;  and  the  recognition  and  declaration  of  this  right 
were  made  a  fixture  in  the  same  identical  place  by  the  same 
identical  means  as  was  that  of  the  other.  This  being  so  makes 
it  impossible  to  be  escaped  by  anybody  who  has  any  respect 
for  the  work  of  those  noble  master-builders,  or  for  the  rights  of 
the  people. 

Let  us  trace  the  history  of  this  right  of  the  people  through 
the  time  which  we  have  traversed  in  tracing  the  history  of  the 
rights  of  the  people  in  the  abstract. 

Like  the  other  series  of  events,  this  too  began  in  Virginia. 
While  Virginia  was  yet  a  Colony  and  subject  to  Great  Britain, 


RELIGIOUS    RIGHT    IN    THE    UNITED    STATES.  85 

and  while  the  Church  of  England  was  the  established  church 
of  the  Colony,  the  colonial  House  of  Burgesses,  June  12,  1776, 
adopted  a  Declaration  of  Rights,  composed  of  sixteen  sections, 
every  one  of  which,  in  substance,  afterward  found  a  place  in 
the  Declaration  of  Independence  and  the  Constitution.  The 
sixteenth  section,  in  part,  reads  thus: — 

"  That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the 
manner  of  discharging  it,  can  be  directed  only  by  reason  and  convic- 
tion, not  by  force  or  violence,  and  therefore  all  men  are  equally  enti- 
tled to  the  free  exercise  of  religion,  according  to  the  dictates  of  con- 
science." 

July  4  following,  the  Declaration  of  Independence  was 
made,  wherein,  as  we  have  already  seen,  this  principle  is  em- 
bodied in  the  statement  that  "governments  derive  their  just 
powers  from  the  consent  of  the  governed. ' '  This  is  precisely 
the  view  that  was  taken  of  it,  and  the  use  that  was  made  of 
the  principle  as  it  appeared  in  the  Declaration  of  Independence, 
as  soon  as  that  Declaration  was  published  to  the  world.  For 
no  sooner  was  the  Declaration  published  abroad  than  the  Pres- 
bytery of  Hanover,  in  Virginia,  openly  took  its  stand  with  the 
new  and  independent  nation,  and,  with  the  Baptists  and  Quak- 
ers, addressed  to  the  General  Assembly  of  Virginia  a  memo- 
rial reading  as  follows: — 

"To  the  Honorable,  the  General  Assembly  of  Virginia:  The 
memorial  of  the  Presbytery  of  Hanover  humbly  represents:  That  your 
memorialists  are  governed  by  the  same  sentiments  which  have  inspired 
the  United  States  of  America,  and  are  determined  that  nothing  in  em- 
power and  influence  shall  be  wanting  to  give  success  to  their  common 
cause.  We  would  also  represent  that  dissenters  from  the  Church  of 
England  in  this  country  have  ever  been  desirous  to  conduct  themselves 
as  peaceful  members  of  the  civil  government,  for  which  reason  they 
have  hitherto  submitted  to  various  ecclesiastical  burdens  and  restric- 
tions that  are  inconsistent  with  equal  liberty.  But  now,  when  the 
many  and  grievous  oppressions  of  our  mother  country  have  laid  this 
continent  under  the  necessity  of  casting  off  the  yoke  of  tyranny,  and 


86  THE    RIGHTS    OF    THE    PEOPLE. 

of  forming  independent  governments  upon  equitable  and  liberal  foun- 
dations, we  flatter  ourselves  that  we  shall  be  freed  from  all  the  incum- 
brances  which  a  spirit  of  domination,  prejudice,  or  bigotry  has  inter- 
woven with  most  other  political  systems.  This  we  are  the  more 
strongly  encouraged  to  expect  by  the  Declaration  of  Rights,  so  uni- 
versally applauded  for  that  dignity,  firmness,  and  precision  with  which 
it  delineates  and  asserts  the  privileges  of  society,  and  the  prerogatives 
of  human  nature,  and  which  we  embrace  as  the  Magna  Charta  of  our 
commonwealth,  that  can  never  be  violated  without  endangering  the 
grand  superstructure  it  was  designed  to  sustain.  Therefore  we  rely 
upon  this  Declaration,  as  well  as  the  justice  of  our  honorable  Legis- 
lature, to  secure  us  the'free  exercise  of  religion  according  to  the  dic- 
tates of  our  own  consciences;  and  we  should  fall  short  in  our  duty  to 
ourselves,  and  the  many  and  numerous  congregations  under  our  care, 
were  we,  upon  this  occasion,  to  neglect  laying  before  you  a  statement 
of  the  religious  grievances  under  which  we  have  hitherto  labored,  that 
they  may  no  longer  be  continued  in  our  present  form  of  government. 

"It  is  well  known  that  in  the  frontier  counties,  which  are  justly 
supposed  to  contain  a  fifth  part  of  the  inhabitants  of  Virginia,  the  dis- 
senters have  borne  the  heavy  burdens  of  purchasing  glebes,  building 
churches,  and  supporting  the  established  clergy,  where  there  are  very 
few  Episcopalians,  either  to  assist  in  bearing  the  expense,  or  to  reap 
the  advantage;  and  that  throughout  other  parts  of  the  country  there 
are  also  many  thousands  of  zealous  friends  and  defenders  of  our  State 
who,  besides  the  invidious  and  disadvantageous  restrictions  to  which 
they  have  been  subjected,  annually  pay  large  taxes  to  support  an 
establishment  from  which  their  consciences  and  principles  oblige  them 
to  dissent;  all  of  which  are  confessedly  so  many  violations  of  their 
natural  rights,  and,  in  their  consequences,  a  restraint  upon  freedom 
of  inquiry  and  private  judgment. 

"  In  this  enlightened  age,  and  in  a  land  where  all  of  every  denom- 
ination are  united  in  the  most  strenuous  efforts  to  be  free,  we  hope 
and  expect  that  our  representatives  will  cheerfully  concur  in  removing 
every  species  of  religious  as  well  as  civil  bondage.  Certain  it  is  that 
every  argument  for  civil  liberty  gains  additional  strength  when  applied 
to  liberty  in  the  concerns  of  religion;  and  there  is  no  argument  in 
favor  of  establishing  the  Christian  religion  but  may  be  pleaded  with 
equal  propriety  for  establishing  the  tenets  of  Mohammed  by  those  who 
believe  the  Alcoran;  or,  if  this  be  not  true,  it  is  at  least  impossible  for 
the  Magistrate  to  adjudge  the  right  of  preference  among  the  various 


RELIGIOUS  RIGHT  IN  Tiii-:  UNITED  STATKS.  Xy 

sects  that  profess  the  Christian  faith  WITHOUT  ERECTING  A  CLAIM  TO 
IXFALLIBILTY,  WHICH  WOULD  LEAD  US  BACK  TO  THE  CHURCH  OF 
ROME. 

"We  beg  leave  farther  to  represent  that  religious  establishments 
are  highly  injurious  to  the  temporal  interests  of  any  community. 
Without  insisting  upon  the  ambition  and  the  arbitrary  practices  of 
those  who  are  favored  by  the  government,  of  the  intriguing,  seditious 
spirit  which  is  commonly  excited  by  this  as  well  as  by  every  other 
kind  of  oppression,  such  establishments  greatly  retard  population, 
and  consequently  the  progress  of  arts,  sciences,  and  manufactures. 
Witness  the  rapid  growth  and  improvement  of  the  northern  provinces 
compared  with  this.  No  one  can  deny  that  the  more  early  settlements 
and  the  many  superior  advantages  of  our  country  would  have  invited 
multitudes  of  artificers,  mechanics,  and  other  useful  members  of 
society  to  fix  their  habitation  among  us,  who  have  either  remained  in 
their  place  of  nativity  or  preferred  worse  civil  governments  and  a 
more  barren  soil,  where  they  might  enjoy  the  rights  of  conscience 
more  fully  than  they  had  a  prospect  of  doing  in  this;  from  which  we 
infer  that  Virginia  might  have  been  now  the  capital  of  America,  and  a 
match  for  the  British  arms,  without  depending  on  others  for  the  neces- 
saries of  war,  had  it  not  been  prevented  by  her  religious  establish- 
ment. 

"  Neither  can  it  be  made  to  appear  that  the  gospel  needs  any  such 
civil  aid.  We  rather  conceive  that  when  our  blessed  Saviour  declares 
his  kingdom  is  not  of  this  world,  he  renounces  all  dependence  upon 
State  power,  and  as  his  weapons  are  spiritual,  and  were  only  designed 
to  have  influence  on  the  judgment  and  heart  of  man,  we  are  per- 
suaded that  if  mankind  were  left  in  quiet  possession  of  their  inalien- 
able religious  privileges,  Christianity,  as  in  the  days  of  the  apostles, 
would  continue  to  prevail  and  flourish  ift-the  greatest  purity  by  its 
own  native  excellence,  and  under  the  all-disposing  providence  of 
God. 

"We  would  also  humbly  represent  that  the  only  proper  objects  of 
civil  government  are  the  happiness  and  protection  of  men  in  the  pres- 
ent state  of  existence,  th.e  security  of  the  life,  liberty,  and  property  of 
the  citizens,  and  to  restrain  the  vicious  and  encourage  the  virtuous  by 
wholesome  laws,  equally  extending  to  every  individual;  but  that  the 
duty  which  we  owe  to  our  Creator,  and  the  manner  of  discharging  it, 
can  only  be  directed  by  reason  and  conviction,  and  is  nowhere  cog- 
nizable but  at  the  tribunal  of  the  universal  Judge. 


88  MHK     Rir.HTS    OF    TIIK     PEOPLE. 

"  Therefore  we  ask  no  ecclesiastical  establishments  for  ourselves; 
neither  can  we  approve  of  them  when  granted  to  others.  This, 
indeed,  would  be  giving  exclusive  or  separate  emoluments  or  privi- 
leges to  one  set  of  men  without  any  special  public  services,  to  the 
common  reproach  and  injury  of  every  other  denomination.  And  for 
the  reason  recited,  we  are  induced  earnestly  to  entreat  that  all  laws 
now  in  force  in  this  commonwealth  which  countenance  religious  dom- 
ination may  be  speedily  repealed;  that  all  of  every  religious  sect  may 
be  protected  in  the  full  exercise  of  their  several  modes  of  worship; 
exempted  from  all  taxes  for  the  support  of  any  church  whatsoever, 
farther  than  what  may  be  agreeable  to  their  own  private  choice  or 
voluntary  obligation.  This  being  done,  all  partial  and  invidious  dis- 
tinction will  be  abolished,  to  the  great  honor  and  interest  of  the  State, 
and  every  one  be  left  to  stand  or  fall  according  to  his  merit,  which 
can  never  be  the  case  so  long  as  any  one  denomination  is  established 
in  preference  to  the  others. 

"That  the  great  Sovereign  of  the  universe  may  inspire  you  with 
unanimity,  wisdom,  and  resolution,  and  bring  you  to  a  just  determi- 
nation on  all  the  important  concerns  before  you,  is  the  fervent  prayer 
of  your  memorialists." — Bawd's  Religion  in  America,  Book  III,  chap. 
j,  par.  9-16. 

The  Episcopalian  being  the  established  church  of  Virginia, 
and  having  been  so  ever  since  the  planting  of  the  Colony,  it 
was  of  course  only  to  be  expected  that  the  Episcopalians  would 
send  up  counter-memorials,  pleading  for  a  continuance  of  the 
system  of  established  religion.  But  this  was  not  all — the 
Methodists  joined  with  the  Episcopalians  in  this  plan.  Two 
members  of  the  Assembly,  Messrs.  Pendleton  and  Nicolas, 
championed  the  establishment,  and  Jefferson  espoused  the 
cause  of  liberty  and  right.  After  nearly  two  months  of  what 
Jefferson  pronounced  the  severest  contest  in  which  he  was  ever 
engaged,  the  cause  of  freedom  prevailed,  and  December  6, 
1776,  the  Assembly  passed  a  law  repealing  all  the  colonial 
laws  and  penalties  prejudicial  to  dissenters,  releasing  them  from 
any  further  compulsory  contributions  to  the  Episcopal  Church, 
and  discontinuing  the  State  support  of  the  Episcopal  clergy 
after  January  i,  1777. 


RKLIGIOtJS    RKiHT    IX    THE    UNITED    STATES.  89 

A  motion  was  then  made  to  levy  a  general  tax  for  the  sup- 
port of ' '  teachers  of  the  Christian  religion, ' '  but  it  was  post- 
poned till  a  future  Assembly.  To  the  next  Assembly  petitions 
were  sent  by  the  Episcopalians  and  the  Methodists,  pleading 
for  the  general  assessment.  But  the  Presbytery  of  Hanover, 
still  strongly  supported  by  the  Baptists  and  the  Quakers,  was 
again  on  hand  with  a  memorial,  in  which  it  referred  to  the 
points  previously  presented,  and  then  proceeded  as  follows: — 

"  We  would  also  humbly  represent  that  the  only  proper  objects  of 
civil  government  are  the  happiness  and  protection  of  men  in  the  pres- 
ent state  of -existence,  the  security  of  the  life,  liberty,  and  property  of 
the  citizens,  and  to  restrain  the  vicious  and  to  encourage  the  virtuous 
by  wholesome  laws,  equally  extending  to  every  individual;  but  that 
the  duty  which  we  owe  to  our  Creator,  and  the  manner  of  discharging 
it,  can  only  be  directed  by  reason  and  conviction,  and  is  nowhere  cog- 
nizable but  at  the  tribunal  of  the  universal  Judge. 

"To  illustrate  and  confirm  these  assertions,  we  beg  leave  to 
observe  that  to  judge  for  ourselves,  and  to  engage  in  the  exercise  of 
religion  agreeably  to  the  dictates  of  our  own  consciences,  is  an  unalien- 
able  right,  which,  upon  the  principles  on  which  the  gospel  was  first 
propagated  and  the  Reformation  from  popery  carried  on,  can  never 
be  transferred  to  another.  Neither  does  the  church  of  Christ  stand  in 
need  of  a  general  assessment  for  its  support;  and  most  certain  we  are 
that  it  would  be  of  no  advantage  but  an  injury  to  the  society  to  which 
we  belong;  and  as  every  good  Christian  believes  that  Christ  has 
ordained  a  complete  system  of  laws  for  the  government  of  his  king- 
dom, so  we  are  persuaded  that  by  his  providence  he  will  support  it  to 
its  final  consummation.  In  the  fixed  belief  of  this  principle,  that  the 
kingdom  of  Christ  and  the  concerns  of  religion  are  beyond  the  limits 
of  civil  control,  we  should  act  a  dishonest,  inconsistent  part  were  we 
to  receive  any  emoluments  from  human  establishments  for  the  support 
of  the  gospel. 

"  These  things  being  considered,  we  hope  that  we  shall  be  excused 
for  remonstrating  against  a  general  assessment  for  any  religious  pur- 
pose. As  the  maxims  have  long  been  approved,  that  every  servant 
is  to  obey  his  master,  and  that  the  hireling  is  accountable  for  his  con- 
duct to  him  from  whom  he  receives  his  wages,  in  like  manner,  if  the 
Legislature  has  any  rightful  authority  over  the  ministers  of  the  gospel 


90  THE    RIGHTS    OF    THE    PEOPLE. 

in  the  exercise  of  their  sacred  office,  and  if  it  is  their  duty  to  levy  a 
maintenance  for  them  as  such,  then  it  will  follow  that  they  may  revive 
the  old  establishment  in  its  former  extent,  or  ordain  a  new  one  for 
any  sect  they  may  think  proper;  they  are  invested  with  a  power  not 
only  to  determine,  but  it  is  incumbent  on  them  to  declare,  who  shall 
preach,  what  they  shall  preach,  to  whom,  when,  and  in  what  places 
they  shall  preach;  or  to  impose  any  regulations  and  restrictions  upon 
religious  societies  that  they  may  judge  expedient.  These  conse- 
quences are  so  plain  as  not  to  be  denied,  and  they  are  so  entirely  sub- 
versive of  religious  liberty  that  if  they  should  take  place  in  Virginia 
we  should  be  reduced  to  the  melancholy  necessity  of  saying  with  the 
apostles  in  like  cases,  'Judge  ye  whether  it  is  best  to  obey  God  or 
men,'  and  also  of  acting  as  they  acted. 

"Therefore,  as  it  is  contrary  to  our  principles  and  interest,  and,  as 
we  think,  subversive  of  religious  liberty,  we  do  again  most  earnestly 
entreat  that  our  Legislature  would  never  extend  any  assessment  for 
religious  purposes  to  us  or  to  the  congregations  under  our  care." — Id., 
par.  21-23. 

In  1779,  by  this  memorial,  and,  more,  "by  the  strenuous 
efforts  of  the  Baptists, ' '  the  bill  was  defeated,  after  it  had  been 
ordered  to  the  third  reading. 

At  this  same  time  in  1779  Jefferson  prepared  with  his  own 
hand  and  proposed  for  adoption  '  'as  a  part  of  the  Revised  Code' ' 
of  Virginia,  "An  Act  for  Establishing  Religious  Freedom," 
which  ran  as  follows: — 

"Well  aware  that  Almighty  God  hath  created  the  mind  free;  that 
all  attempts  to  influence  it  by  temporal  punishments  or  burdens,  or 
by  civil  incapacitations,  tend  only  to  beget  habits  of  hypocrisy  and 
meanness,  and  are  a  departure  from  the  plan  of  the  holy  Author  of  our 
religion,  who,  being  Lord  both  of  body  and  mind,  yet  chose  not  to 
propagate  it  by  coercions  on  either,  as  was  in  his  almighty  power  to 
do;  that  the  impious  presumption  of  legislators  and  rulers,  civil  as 
well  as  ecclesiastical,  who,  being  themselves  but  fallible  and  uninspired 
men,  have  assumed  dominion  over  the  faith  of  others,  setting  up  their 
own  opinions  and  modes  of  thinking  as  the  only  true  and  infallible, 
and  as  such  endeavoring  to  impose  them  on  others,  hath  established 
and  maintained  false  religions  over  the  greatest  part  of  the  world,  and 
through  all  time;  that  to  compel  a  man  to  furnish  contributions  of 


92  THE    RIGHTS    OF    THK    PEOPLE. 

money  for  the  propagation  of  opinions  which  he  disbelieves,  is  sinful 
and  tyrannical;  that  even  the  forcing  him  to  support  this  or  that  teacher 
of  his  own  religious  persuasion,  is  depriving  him  of  the  comfortable- 
liberty  of  giving  his  contributions  to  the  particular  pastor  whose  mor- 
als h'e  would  make  his  pattern,  and  whose  powers  he  feels  most  persua- 
sive to  righteousness,  and  is  withdrawing  from  the  ministry  those 
temporal  rewards  which,  proceeding  from  an  approbation  of  their  per- 
sonal conduct,  are  an  additional  incitement  to  earnest  and  unremitting 
labors  for  the  instruction  of  mankind;  that  our  civil  rights  have  no 
dependence  on  our  religious  opinions,  more  than  our  opinions  in 
physics  or  geometry;  that,  therefore,  the  proscribing  any  citizen  as 
unworthy  the  public  confidence,  by  laying  upon  him  an  incapacity  of 
being  called  to  the  offices  of  trust  and  emolument,  unless  he  profess 
or  renounce  this  or  that  religious  opinion,  is  depriving  him  injuriously 
of  those  privileges  and  advantages  to  which,  in  common  with  his 
fellow-citizens,  he  has  a  natural  right;  that  it  tends  to  corrupt  the 
principles  of  that  very  religion  it  is  meant  to  encourage,  by  bribing 
with  a  monopoly  of  worldly  honors  and  emoluments  those  who  will 
externally  profess  and  conform  to  it;  that,  though  indeed  these  are 
criminal  who  do  not  withstand  such  temptation,  yet  neither  are  those 
innocent  who  lay  the  bait  in  their  way;  that  to  suffer  the  civil  magis- 
trate to  intrude  his  powers  into  the  field  of  opinion,  and  to  restrain  the 
profession  or  propagation  of  principles,  on  the  supposition  of  their  ill 
tendency,  is  a  dangerous  fallacy,  which  at  once  destroys  all  religious 
liberty,  because,  he  being  of  course  judge  of  that  tendency,  will  make 
his  opinions  the  rule  of  judgment,  and  approve  or  condemn  the  senti- 
ments of  others  only  as  they  shall  square  with,  or  differ  from,  his  own; 
that  it  is  time  enough  for  the  rightful  purposes  of  civil  government  for 
its  officers  to  interfere  when  principles  break  out  into  overt  actions 
against  peace  and  good  order;  and,  finally,  that  truth  is  great,  and 
will  prevail  if  left  to  herself;  that  she  is  the  proper  and  sufficient  antag- 
onist to  error,  and  has  nothing  to  fear  from  the  conflict,  unless  by 
human  interposition  disarmed  of  her  natural  weapons,  free  argument 
and  debate,  errors  ceasing  to  be  dangerous  when  it  is  permitted  freely 
to  contradict  them. 

"Be  it  therefore  enacted  by  the  General  Assembly ',  that  no  man 
shall  be  compelled  to  frequent  or  support  any  religious  worship,  place, 
or  ministry  whatsoever,  nor  shall  be  enforced,  restrained,  molested, 
or  burthened  in  his  body  or  goods,  nor  shall  otherwise  suffer  on 
account  of  his  religious  opinions  or  belief;  but  that  all  men  shall  be 


RELlCJIors    KKili'l     IN    THE    EXITED    STATES.  93 

free  to  profess,  and  by  argument  to  maintain,  their  opinions  in  matters 
of  religion,  and  that  the  same  shall  in  nowise  diminish,  enlarge,  or 
affect  their  civil  capacities. 

"And  though  we  well  know  that  this  Assembly,  elected  by  the  peo- 
ple for  the  ordinary  purposes  of  legislation  only,  have  no  power  to 
restrain  the  acts  of  succeeding  assemblies,  constituted  with  powers 
equal  to  our  own,  and  that  therefore  to  declare  this  act  irrevocable, 
would  be  of  no  effect  in  law,  yet  we  are  free  to  declare,  and  do  declare, 
that  the  rights  hereby  asserted  are  of  the  natural  rights  of  mankind, 
and  that  if  any  act  shall  be  hereafter  passed  to  repeal  the  present  or 
to  narrow  its  operation,  such  act  will  be  an  infringement  of  natural 
right." — Id., par.  27,  note. 

This  proposed  law  was  submitted  to  the  whole  people  of 
Virginia  for  their  '  'deliberate  reflection' '  before  the  vote  should 
be  taken  in  the  General  Assembly  for  its  enactment  into  law  as 
a  part  of  the  revised  code. 

From  this  time  forward  the  war  for  independence  became 
the  all-absorbing  question,  and  this  movement  for  the  estab- 
lishment of  "the  Christian  religion,"  was  compelled  to  stand  in 
abeyance  until  the  war  had  ended.  At  the  first  opportunity, 
however,  after  peace  had  come  again  to  the  country,  the  sub- 
ject was  again  forced  upon  the  General  Assembly  of  Virginia, 
in  the  fall  of  1784,  by  the  petitioners,  under  the  lead  of  "The 
Protestant  Episcopal  Church,"  for  the  establishment  of  "a 
provision  for  teachers  of  the  Christian  religion."  "Their  peti- 
tions, favored  by  Patrick  Henry;  Harrison,  then  governor; 
Pendleton,  the  chancellor;  Richard  Henry  Lee,  and  many 
others  of  the  foremost  men,  alleged  a  decay  of  public  morals; 
and  the  remedy  asked  for  was  a  general  assessment." — Ban- 
croft^ History  of  Constitution,  Vol.  I,  p.  213. 

At  this  point  the  Presbyterian  clergy  swerved  and  '  'accepted 
the  measure,  provided  it  should  respect  every  human  belief, 
even  'of  the  Mussulman  and  the  Gentoo.'  " — Id.  '  The  Presby- 
terian people,  however,  held  fast  to  the  principle.  And  the 
Baptists,  as  ever  in  those  days,  "alike  ministers  and  people," 


94  THE    RIGHTS    OF    THE    PEOPLE. 

held  steadfastly  to  the  principle  and  "rejected  any  alliance  with' 
theSfate."— •  Id. 

Early  in  ihe  session  Patrick  Henry  introduced  a  resolution 
to  allow  the  presentation  of  a  bill  in  accordance  with  the  wishes 
of  the  petitioners.  Personally  Jefferson  was  out  of  the  country, 
being  minister  to  France;  but  his  bill  for  ''Establishing  Reli- 
gious Freedom, ' '  which  had  been  submitted  to  the  people  in 
1779,  was  still  before  them;  and,  though  personally  absent,  he 
took  a  lively  interest  in  the  contest,  and  his  pen  was  busy.  His 
place  in  the  General  Assembly  was  most  worthily  filled  by  Madi- 
son, as  the  leader  in  the  cause  of  religious  right.  Madison 
declared  against  the  bill,  that — 

"The  assessment  bill  exceeds  the  functions  of  civil  authority.  The 
question  has  been  stated  as  if  it  were,  Is  religion  necessary?  The 
true  question  is,  Are  establishments  necessary  to  religion?  And  the 
answer  is,  They  corrupt  religion.  The  difficulty  of  providing  for  the 
support  of  religion  is  the  result  of  the  war,  to  be  remedied  by  volun- 
tary association  for  religious  purposes.  In  the  event  of  a  statute  for 
the  support  of  the  Christian  religion,  are  the  courts  of  Inw  to  decide 
what  is  Christianity  ?  and  as  a  consequence,  to  decide  what  is  ortho- 
doxy and  what  is  heresy?  The  enforced  support  of  the  Christian 
religion  dishonors  Christianity." — Id.,  p.  214. 

'  'Yet,  in  spite  of  all  opposition,  leave  to  bring  in  the  bill  was 
granted  by  forty-seven  votes  against  thirty-two." — Id.  Ac- 
cordingly there  was  introduced  "A  Bill  Establishing  a  Provi- 
sion for  Teachers  of  the  Christian  Religion;  "  which  provided 
a  general  assessment  on  all  taxable  property  for  the  purpose 
named;  that* each  person  as  he  paid  his  tax  should  say  to  what 
particular  denomination  he  desired  it  to  be  conveyed;  and  that 
in  ail  cases  wherein  persons  declined  to  name  any  religious 
society,  all  such  tax  received  from  these  was  to  be  turned  to  the 
support  of  schools  in  the  counties  of  said  persons  respectively. 

The  bill  was  successfully  carried  to  the  third  reading,  and 
was  there  checked  only  by  a  motion  to  postpone  the  subject 
to  the  next  General  Assembly,  meantime  to  print  the  bill  and 


RELIGIOUS    RIGHT    IN    THE    UNITED    STATES.  95 

distribute  it  among  the  people  for  their  consideration,  that  their 
will  in  the  matter  might  be  signified  to  the  next  Assembly, 
which  then  could  act  accordingly.  '  'Thus  the  people  of  Vir- 
ginia had  before  them  for  their  choice  the  bill  of  the  revised 
code  for  'Establishing  Religious  Freedom,'  and  the  plan  of 
desponding  churchmen  for  supporting  religion  by  a  general 
assessment. ' ' 

"All  the  State,  from  the  sea  to  the  mountains  and  beyond  them, 
was  alive  with  the  discussion.  Madison,  in  a  remonstrance  addressed 
to  the  Legislature,  embodied  all  that  could  be  said  against  the  compul- 
sory maintenance  of  Christianity,  and  in  behalf  of  religious  freedom  as 
a  natural  right,  the  glory  of  Christianity  itself,  the  surest  method  of 
supporting  religion,  and  the  only  way  to  produce  harmony  among  its 
several  sects." — Id., p.  215. 

This  noble  remonstrance,  which  "embodied  all  that  could 
be  said"  upon  the  subject,  should  be  ingrained  in  the  minds  of 
the  American  people  to-day;  because  all  that  it  said  then  needs 
to  be  said  now,  even  with  a  double  emphasis.  This  masterly 
document,  which  on  the  subject  of  religious  right  holds  the 
same  high  place  as  does  the  Declaration  of  Independence  on 
the  subject  of  rights  in  general,  is  here  given  in  full,  and  runs 
as  follows : — 

"We,  the  subscribers,  citizens  of  the  said  commonwealth,  having 
taken  into  serious  consideration  a  bill  printed  by  order  of  the  last  ses- 
sion of  General  Assembly,  entitled  'A  Bill  Establishing  a  Provision 
for  Teachers  of  the  Christian  Religion,'  and  conceiving  that  the  same, 
if  finally  armed  with  the  sanctions  of  a  law,  will  be  a  dangerous  abuse 
of  power,  are  bound  as  faithful  members  of  a  free  State  to  remonstrate 
against  it,  and  to  declare  the  reasons  by  which  we  are  determined. 
We  remonstrate  against  the  said  bill: — 

"i.  Because  we  hold  it  for  a  fundamental  and  undeniable  truth 
'that  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the  man- 
ner of  discharging  it,  can  be  directed  only  by  reason  and  conviction 
not  by  force  or  violence.'  The  religion,  then,  of  every  man  must  be 
left  to  the  conviction  and  conscience  of  every  man;  and  it  is  the  right 
of  every  man  to  exercise  it  as  these  may  dictate.  This  right  is  in  its 


RELIGIOUS    RIGHT    IN    THE    UNITED    STATES.  97 

nature  an  unalienable  right.  It  is  unalienable,  because  the  opinions 
of  men,  depending  only  on  the  evidence  contemplated  in  their  own 
minds,  cannot  follow  the  dictates  of  other  men.  It  is  unalienable, 
also,  because  what  is  here  a  right  towards  men  is  a  duty  towards  the 
Creator.  It  is  the  duty  of  every  man  to  render  to  the  Creator  such 
homage,  and  such  only,  as  he  believes  to  be  acceptable  to  him.  This 
duty  is  precedent,  both  in  order  of  time  and  in  degree  of  obligation, 
to  the  claims  of  civil  society.  Before  any  man  can  be  considered  as  a 
member  of  civil  society,  he  must  be  considered  as  a  subject  of  the 
Governor  of  the  universe;  and  if  a  member  of  civil  society  who  enters 
into  any  subordinate  association,  must  always  do  it  with  a  reservation 
of  his  duty  to  the  general  authority,  much  more  must  every  man  who 
becomes  a  member  of  any  particular  civil  society  do  it  with  a  saving 
of  his  allegiance  to  the  universal  Sovereign.  We  maintain,  therefore, 
that  in  matters  of  religion  no  man's  right  is  abridged  by  the  institution 
of  civil  society,  and  that  religion  is  wholly  exempt  from  its  cognizance. 
True  it  is,  that  no  other  rule  exists  by  which  any  question  which  may 
divide  a  society  can  be  ultimately  determined  than  the  will  of  the 
majority;  but  it  is  also  true  that  the  majority  may  trespass  upon  the 
rights  of  the  minority. 

"2.  Because,  if  religion  is  exempt  from  the  authority  of  the  society 
at  large,  still  less  can  it  be  subject  to  that  of  the  legislative  body. 
The  latter  are  but  the  creatures  and  vicegerents  of  the  former.  Their 
jurisdiction  is  both  derivative  and  limited.  It  is  limited  with  regard 
to  the  coordinate  departments;  more  necessarily  is  it  limited  with 
regard  to  the  constituents.  The  preservation  of  a  free  government 
requires  not  merely  that  the  metes  and  bounds  which  separate  each 
department  of  power  be  invariably  maintained,  but  more  especially 
that  neither  of  them  be  suffered  to  overleap  the  great  barrier  which 
defends  the  rights  of  the  people.  The  rulers  who  are  guilty  of  such 
an  encroachment  exceed  the  commission  from  which  they  derive  their 
authority,  and  are  tyrants.  The  people  who  submit  to  it  are  governed 
by  laws  made  neither  by  themselves  nor  by  any  authority  derived  from 
them,  and  are  slaves. 

"3.  Because  it  is  proper  to  take  alarm  at  the  first  experiment  upon 
our  liberties.  We  hold  this  prudent  jealousy  to  be  the  first  duty  of 
citizens,  and  one  of  the  noblest  characteristics  of  the  late  Revolution. 
The  freemen  of  America  did  not  wait  till  usurped  power  had  strength- 
ened itself  by  exercise,  and  entangled  the  question  in  precedents. 
They  saw  all  the  consequences  in  the  principle,  and  they  avoided  the 


98  THE    KIGHTS    OF    THE    PEOPLE. 

consequences  by  denying  the  principle.  We  revere  this  lesson  too 
much  soon  to  forget  it.  Who  does  not  see  that  the  same  authority 
which  can  establish  Christianity,  in  exclusion  of  all  other  religions, 
may  establish,  with  the  same  ease,  any  particular  sect  of  Christians, 
in  exclusion  of  all  other  sects  ?  that  the  same  authority  which  can 
force  a  citizen  to  contribute  threepence  only,  of  his  property,  for  the 
support  of  any  one  establishment,  may  force  him  to  conform  to  any 
other  establishment  in  all  cases  whatsover  ? 

"4.  Because  the  bill  violates  that  equality  which  ought  to  be  the 
basis  of  every  law,  and  which  is  more  indispensableln  proportion  as 
the  validity  or  expediency  of  any  law  is  more  liable  to  be  impeached. 
'  If  all  men  are  by  nature  equally  free  and  independent,'  all  men  are 
'to  be  considered  as  entering  into  society  on  equal  conditions,  as  re- 
linquishing no  more,  and,  therefore,  retaining  no  less,  one  than  the 
other,  of  their  natural  rights.  Above  all,  are  they  to  be  considered 
as  retaining  an  'equal  title  to  the  free  exercise  of  religion  according 
to  the  dictates  of  conscience.'  Whilst  we  assert  for  ourselves  a  free- 
dom to  embrace,  to  profess,  and  to  observe  the  religion  which  we 
believe  to  be  of  divine  origin,  we  cannot  deny  an  equal  freedom  to 
them  whose  minds  have  not  yet  yielded  to  the  evidence  which  has  con- 
vinced us.  If  this  freedom  be  abused,  it  is  an  offense  against  God, 
not  against  man.  To  God,  therefore,  not  to  man,  must  an  account  of 
it  be  rendered.  As  the  bill  violates  equality  by  subjecting  some  to 
peculiar  burdens,  so  it  violates  the  same  principle  by  granting  to 
others  peculiar  exemptions.  Are  the  Quakers  and  Menonists  the  only- 
sects  who  think  a  compulsive  support  of  their  religions  unnecessary 
and  unwarrantable  ?  Can  their  piety  alone  be  intrusted  with  the  care 
of  public  worship  ?  Ought  their  religions  to  be  endowed  above  all 
others  with  extraordinary  privileges  by  which  proselytes  may  be 
enticed  from  all  others  ?  We  think  too  favorably  of  the  justice  and 
good  sense  of  these  denominations  to  believe  that  they  either  covet 
preeminences  over  their  fellow-citizens,  or  that  they  will  be  seduced 
by  them  from  the  common  opposition  to  the  measure. 

"5.  Because  the  bill  implies  either  that  the  civil  magistrate  is  a 
competent  judge  of  religious  truths,  or  that  he  may  employ  religion 
as  an  engine  of  civil  policy.  The  first  is  an  arrogant  pretension,  falsi- 
fied by  the  contradictory  opinions  of  rulers  in  all  ages  and  throughout 
the  world;  the  second,  an  unhallowed  perversion  of  the  means  of  sal- 
vation. 

"6-  Because  the  establishment  proposed  by  the  bill  is  not  requisite 


RELIGIOUS    RIGHT    IN    THE    UNITED    STATES.  99 

for  the  support  of  the  Christian  religion.  To  say  that  it  is,  is  a  con- 
tradiction to  the  Christian  religion  itself,  for  every  page  of  it  disavows 
a  dependence  on  the  powers  of  this  world.  It  is  a  contradiction  to 
fact;  for  it  is  known  that  this  religion  both  existed  and  flourished,  not 
only  without  the  support  of  human  laws,  but  in  spite  of  every  opposi- 
tion from  them,  and  not  only  during  the  period  of  miraculous  aid,  but 
long  after  it  had  been  left  to  its  own  evidence  and  the  ordinary  care 
of  Providence.  Nay,  it  is  a  contradiction  in  terms;  for  a  religion  not 
invented  by  human  policy  must  have  preexisted  and  been  supported 
before  it  was  established  by  human  policy.  It  is,  moreover,  to  weaken 
in  those  who  profess  this  religion  a  pious  confidence  in  its  innate 
excellence  and  the  patronage  of  its  Author,  and  to  foster  in  those  who 
still  reject  it  a  suspicion  that  its  friends  are  too  conscious  of  its  fallacies 
to  trust  it  to  its  own  merits. 

"7.  Because  experience  witnesseth  that  ecclesiastical  establish- 
ments, instead  of  maintaining  the  purity  and  efficacy  of  religion,  have- 
had  a  contrary  operation.  During  almost  fifteen  centuries  has  the 
legal  establishment  of  Christianity  been  on  trial.  What  have  been  its 
fruits?  More  or  less,  in  all  places,  pride  and  indolence  in  the  clergy; 
ignorance  and  servility  in  the  laity;  in  both,  superstition,  bigotry,  and 
persecution.  Inquire  of  the  teachers  of  Christianity  for  the  ages  in 
which  it  appeared  in  its  greatest  luster;  those  of  every  sect  point  to 
the  ages  prior  to  its  incorporation  with  civil  polity.  Propose  a  restora- 
tion of  this  primitive  state,  in  which  its  teachers  depend  on  the  vol- 
untary regard  of  their  flocks — many  of  them  predict  its  downfall.  On 
which  side  ought  their  testimony  to  have  greatest  weight — when  for, 
or  when  against,  their  interest? 

"8.  Because  the  establishment  in  question  is  not  necessary  for  the 
support  of  civil  government.  If  it  be  urged  as  necessary  for  the  sup- 
port of  civil  government  only  as  it  is  a  means  of  supporting  religion, 
and  it  be  not  necessary  for  the  latter  purpose,  it  cannot  be  necessary 
for  the  former.  If  religion  be  not  within  the  cognizance  of  civil  govern- 
ment, how  can  its  legal  establishment  be  necessary  to  civil  government? 
What  influence,  in  fact,  have  ecclesiastical  establishments  had  on  civil 
society?  In  some  instances  they  have  been  seen  to  erect  a  spiritual 
tyranny  on.  the  ruins  of  civil  authority;  in  many  instances  they  have 
been  seen  upholding  the  thrones  of  political  tyranny;  in  no  instance 
have  they  been  seen  the  guardians  of  the  liberties  of  the  people. 
Rulers  who  wished  to  subvert  the  public  liberty  may  have  found  in  es- 
tablished clergy  convenient  auxiliaries.  A  just  government,  instituted 


100  THE    RIGHTS    OF    THE    PEOPLE. 

to  secure  and  perpetuate  it,  needs  them  not.  Such  a  government  will 
be  best  supported  by  protecting  every  citizen  in  the  enjoyment  of  his 
religion  with  the  same  equal  hand  which  protects  his  person  and  his 
property,  by  neither  invading  the  equal  rights  of  any  sect,  nor  suffer- 
ing any  sect  to  invade  those  of  another. 

"9.  Because  the  proposed  establishment  is  a  departure  from  that 
generous  policy  which,  offering  an  asylum  to  the  persecuted  and  op- 
pressed of  every  nation  and  religion,  promised  a  luster  to  our  country, 
and  an  accession  to  the  number  of  its  citizens.  What  a  melancholy 
mark  is  this  bill,  of  sudden  degeneracy!  Instead  of  holding  forth  an 
asylum  to  the  persecuted,  it  is  itself  a  signal  of  persecution.  It 
degrades  from  the  equal  rank  of  citizens  all  those  whose  opinions  in 
religion  do  not  bend  to  those  of  the  legislative  authority.  Distant  as 
it  may  be  in  its  present  form  from  the  Inquisition,  it  differs  from  it 
only  in  degree.  The  one  is  the  first  step,  the  other  is  the  last  in  the 
career  of  intolerance.  The  magnanimous  sufferer  of  this  cruel 
scourge  in  foreign  regions,  must  view  the  bill  as  a  beacon  on  our 
coast  warning  him  to  seek  some  other  haven,  where  liberty  and 
philanthrophy,  in  their  due  extent,  may  offer  a  more  certain  repose 
from  his  troubles. 

"10.  Because  it  will  have  a  like  tendency  to  banish  our  citizens. 
The  allurements  presented  by  other  situations  are  every  day  thinning 
their  number.  To  superadd  a  fresh  motive  to  emigration  by  revoking 
the  liberty  which  they  now  enjoy,  would  be  the  same  species  of  folly 
which  has  dishonored  and  depopulated  flourishing  kingdoms. 

"u.  Because  it  will  destroy  that  moderation  and  harmony  which 
the  forbearance  of  our  laws  to  intermeddle  with  religion  has  produced 
among  its  several  sects.  Torrents  of  blood  have  been  spilt  in  the  Old 
World  in  consequence  of  vain  attempts  of  the  secular  arm  to  extin- 
guish religious  discord  by  proscribing  all  differences  in  religious 
opinion.  Time  has  at  length  revealed  the  true  remedy.  Every 
relaxation  of  narrow  and  rigorous  policy,  wherever  it  has  been  tried, 
has  been  found  to  assuage  the  disease.  The  American  theater  has 
exhibited  proofs  that  equal  and  complete  liberty,  if  it  does  not  wholly 
eradicate  it,  sufficiently  destroys  its  malignant  influence  on  the  health 
and  prosperity  of  the  State.  If,  with  the  salutary  effects  of  this  system 
under  our  own  eyes,  we  begin  to  contract  the  bounds  of  religious 
freedom,  we  know  no  name  which  w^ill  too  severely  reproach  our  folly. 
At  least  let  warning  be  taken  at  the  first  fruits  of  the  threatened  inno- 
vation. The  very  appearance  of  the  bill  has  transformed  'that  Chris- 


RELIGIOUS    RIGHT    IN    THE    UNITED    STATES.  IOI 

tian  forbearance,  love,  and  charity,'  which  of  late  mutually  prevailed, 
into  animosities  and  jealousies  which  may  not  be  appeased.  What 
mischiefs  may  not  be  dreaded,  should  this  enemy  to  the  public  quiet 
be  armed  with  the  force  of  law  ? 

"12.  Because  the  policy  of  the  bill  is  adverse  to  the  diffusion  of  the 
light  of  Christianity.  The  first  wish  of  those  who  enjoy  this  preciou^ 
gift  ought  to  be  that  it  maybe  imparted  to  the  whole  race  of  mankind. 
Compare  the  number  of  those  who  have  as  yet  received  it  with  the 
number  still  remaining  under  the  dominion  of  false  religions,  and  how 
small  is  the  former  ?  Does  the  policy  of  the  bill  tend  to  lessen  the 
disproportion? — No;  it  at  once  discourages  those  who  are  strangers 
to  the  light  of  revelation  from  coming  into  the  region  of  it,  and  coun- 
tenances by  example  the  nations  who  continue  in  darkness  in  shutting 
out  those  who  might  convey  it  to  them.  Instead  of  leveling,  as  far  as 
possible,  every  obstacle  to  the  victorious  progress  of  truth,  the  bill, 
with  an  ignoble  and  unchristian  timidity,  would  circumscribe  it  with  a 
wall  of  defense  against  the  encroachments  of  error. 

"13.  Because  attempts  to  enforce,  by  legal  sanctions,  acts  obnox- 
ious to  so  great  a  proportion  of  citizens,  tend  to  enervate  the  laws  in 
general,  and  to  slacken  the  bands  of  society.  If  it  be  difficult  to 
execute  any  law  which  is  not  generally  deemed  necessary  or  salutary, 
what  must  be  the  case  where  it  is  deemed  invalid  and  dangerous  ? 
And  what  may  be  the  effect  of  so  striking  an  example  of  impotency 
in  the  government,  on  its  general  authority? 

"  14.  Because  a  measure  of  such  singular  magnitude  and  delicacy 
ought  not  to  be  imposed  witnout  the  clearest  evidence  that  it  is  called 
for  by  a  majority  of  citizens;  and  no  satisfactory  method  is  yet  pro- 
posed by  which  the  voice  of  the  majority  in  this  case  may  be  deter- 
mined, or  its  influence  secured.  '  The  people  of  the  respective  coun- 
ties are,'  indeed,  'requested  to  signify  their  opinion  respecting  the 
adoption  of  the  bill,  to  the  next  session  of  the  Assembly.'  But  the 
representation  must  be  made  equal  before  the  voice  either  of  the  rep- 
resentatives or  of  the  counties  will  be  that  of  the  people.  Our  hope  is 
that  neither  of  the  former  will,  after  due  consideration,  espouse  the 
dangerous  principle  of  the  bill.  Should  the  event  disappoint  us,  it 
will  still  leave  us  in  full  confidence  that  a  fair  appeal  to  the  latter  will 
reverse  the  sentence  against  our  liberties. 

"  15.  Because,  finally,  'The  equal  right  of  every  citizen  to  the  free 
exercise  of  his  religion,  according  to  the  dictates  of  conscience,'  is 
held  by  the  same  tenure  with  all  our  other  rights.  If  we  recur  to  its 


102  THE    RIGHTS    OF    THE    PEOPLE. 

origin,  it  is  equally  the  gift  of  nature;  if  we  weigh  its  importance,  it 
cannot  be  less  dear  to  us;  if  we  consult  the  declaration  of  those  rights 
'  which  pertain  to  the  good  peop1e  of  Virginia  as  the  basis  and  founda- 
tion of  government,'  it  is  enumerated  with  equal  solemnity,  or  rather 
with  studied  emphasis.  Either,  then,  we  must  say  that  the  will  of  the 
Legislature  is  the  only  measure  of  their  authority,  and  that  in  the  plen- 
itude of  that  authority  they  may  sweep  away  all  our  fundamental 
rights,  or  that  they  are  bound  to  leave  this  particular  right  untouched 
and  sacred.  Either  we  must  say  that  they  may  control  the  freedom 
of  the  press,  may  abolish  the  trial  by  jury,  may  swallow  up  the  execu- 
tive and  judiciary  powers  of  the  State;  nay,  that  they  may  despoil  us 
of  our  very  rights  of  suffrage,  and  erect  themselves  into  an  independ- 
ent and  hereditary  assembly,  or  we  must  say  that  they  have  no-author- 
ity to  enact  into  a  law  the  bill  under  consideration. 

''We,  the  subscribers,  say  that  the  General  Assembly  of  this  com- 
monwealth have  no  such  authority.  And  in  order  that  no  effort  may 
be  omitted  on  our  part  against  so  dangerous  an  usurpation,  we  oppose- 
to  it  this  remonstrance,  -earnestly  praying,  as  we  are  in  duty  bound, 
that  the  Supreme  Lawgiver  of  the  universe,  by  illuminating  those  to 
whom  it  is  addressed,  may,  on  the  one  hand,  turn  their  councils  from 
every  act  which  would  affront  his  holy  prerogative  or  violate  the 
trust  committed  to  them,  and,  on  the  other,  guide  them  into  every 
measure  which  may  be  worthy  of  his  blessing,  redound  to  their  own 
praise,  and  establish  more  firmly  the  liberties,  the  prosperity,  and  the 
happiness  of  the  commonwealth."— Blakctys  American  State  Papers, 
pp.  27-38;  Two  Republics,  pp.  687-692.  • 

Washington  being  asked  his  opinion  on  the  question  as  it 
stood  in  the  contest,  answered  that  ' '  no  man' s  sentiments  were 
more  opposed  to  any  kind  of  restraint  upon  religious  princi- 
ples "  than  were  his,  and  further  said: — 

"As  the  matter  now  stands,  I  wish  an  assessment  had  never  been 
agitated;  and,  as  it  has  gone  so  far,  that  the  bill  could  die  an  easy 
death."—  Bancroft,  Hist.  Const.,  Vol.  I, p.  215.^ 


1  The  following  passage  from  Wakeley's  "Anecdotes  of  the  Wesleys,"  is  also  worth 
recalling  in  this  connection: — 

"Martin  Rodda  was  an  English  preacher  in  America  during  the  war,  and  by  incau- 
tiously meddling  with  politics  exposed  himself  to  the  displeasure  of  those  in  power. 
At  a  certain  time  he  was  brought  before  General  Washington,  who  asked  who  he  was. 
Rodda  told  him  he  was  one  of  John  Wesley's  preachers.  '  Mr.  Wesley,'  rejoined  his 
excellency,  '  I  respect;  but  Mr.  Wesley,  I  presume,  never  sent  you  to  America  to 
interfere  with  political  matters,  but  to  preach  the  gospel  to  the  people.  Now  go  and 
mind  your  own  proper  work,  and  leave  politics  alone.'  " — Anecdvte,  Washington  and 

~ 


RKLKHOl'S     KTCHT     IX    THE    UXITF-l)    STATES.  103 

The  foregoing  remonstrance  was  so  thoroughly  discussed 
and  so  well  understood,  and  the  will  of  the  people  on  the  sub- 
ject was  made  so  plain  and  emphatic,  that  ' '  when  the  Legisla- 
ture of  Virginia  assembled,  no  person  was  willing  to  bring 
forward  the  Assessment  Bill;  and  it  was  never  heard  of  more. 
Out  of  a  hundred  and  seventeen  articles  of  the  revised  code 
which  were  then  reported,  Madison  selected  for  immediate  action 
the  one  which  related  to  religious  freedom  [on  pages  90—93], 
The  people  of  Virginia  had  held  it  under  deliberation  for  six  years. 
In  December,  1785,  it  passed  the  House  by  a  vote  of  nearly 
four  to  one.  Attempts  in  the  Senate  for  amendment  produced 
only  insignificant  changes  in  the  preamble,  and  on  the  i6th  of 
January,  1786,  Virginia  placed  among  its  statutes  the  very 
words  of  the  original  draft  by  Jefferson,  WITH  THE  HOPE 
THAT  THEY  WOULD  ENDURE  FOREVER:  '  No  man  shall  be 
compelled  to  frequent  or  support  any  religious  worship,  place, 
or  ministry  whatsoever,  nor  shall  suffer  on  account  of  his  reli- 
gious opinions  or  belief;  opinion  in  matters  of  religion  shall  in 
nowise  diminish,  enlarge,  or  affect  civil  capacities.  The  rights 
hereby  asserted  are  of  the  natural  rights  of  mankind.'  " — Id., 

2f6. 

Of  this  blessed  result  Madison  happily  exclaimed: — 

"Thus  in  Virginia  was  extinguished  forever  the  ambitious  hope  of 
making  laws  for  the  human  mind." — Id. 

The  effect  of  this  notable  contest  in  Virginia  could  not  pos- 
sibly be  confined  to  that  State;  nor  was  such  a  thing  desired 
by  those  who  conducted  it.  It  was  understood  and  intended 
by  those  wrho  then  and  there  made  this  contest  for  religious 
right,  that  their  labors  should  extend  to  all  mankind  this  bless- 
ing and  this  natural  right.  The  benefit  of  it  was  immediately 
felt  throughout  the  country;  and  '  'in  every  other  American  State 
oppressive  statutes  concerning  religion  fell  into  disuse,  and  were 
gradually  repealed." — Id.  This  statute  of  Virginia  is  the 


104  THE    RIGHTS    OF   THE   PEOPLE, 

model  upon  which  the  clause  respecting  religious  right  has 
been  founded  in  the  constitutions  of  all  the  States  in  the  Union 
to  this  day.  In  every  instance  this  statute  has  been  embodied 
in  its  substance,  and  often  in  its  very  words,  in  the  State  con- 
stitutions. 

Nor  was  this  all.  It  had  also  ' '  been  foreseen  that  '  the 
happy  consequences  of  this  grand  experiment  .  .  .  would 
not  be  limited  to  America.'  The  statute  of  Virginia,  translated 
into  French  and  into  Italian,  was  widely  circulated  through 
Europe.  A  part  of  the  work  of  '  the  noble  army  of  martyrs' 
was  done." — Id.  217. 

Yet  the  work  of  those  who  accomplished  this  grand  vic- 
tory was  not  then  fully  done,  even  in  their  direct  efforts  relat- 
ing to  their  and  our  own  country. 

As  we  have  seen,  this  victory  was  completed  January  [6, 
1786.  Just  a  month  before  this,  December,  1785,  the  propo- 
sition made  by  Maryland  to  Virginia  to  call  together  commis- 
sioners from  all  the  States  to  consider  and  ' '  regulate  restric- 
tions on  commerce  for  the  whole"  was  laid  before  the  very 
Legislature  which  passed  the  ' '  Bill  Establishing  Religious 
Freedom  in  Virginia."  This  proposition  of  Maryland,  as 
we  have  seen  (chapter  2)  created  the  opening,  which  was 
instantly  seized  by  Madison,  through  which  to  push  to  success- 
ful issue  the  desire  for  the  creation  of  the  nation  by  the 
forming  of  the  Constitution  of  the  United  States.  And  in  push- 
ing to  successful  issue  the  desire  for  the  creation  of  a  national 
power,  there  was  carried  along,  also,  and  finally  fixed  in  the 
Constitution  of  the  United  States,  the  same  principle  of  reli- 
gious right  that  had  been  so  triumphantly  fixed  in  the  code  of 
Virginia. 

The  sole  reference  to  religion  in  the  Constitution  as  formed 
by  the  convention,  and  submitted  to  the  people,  is  in  the  dec- 
laration that — 

"  No  religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States." 


RKLIGIOUS    RIGHT    IN   THE   UNITED    STATES.  IO5 

The  national  government  being  one  of  delegated  powers 
only,  no  mention  whatever  of  religion,  nor  any  reference  to  the 
subject,  in  the  Constitution,  would  have  totally  excluded  that 
subject  from  the  cognizance  of  the  government.  And  this  sole 
mention  that  was  made  of  it,  was  a  clear  and  positive  evidence 
that  the  makers  of  the  Constitution  intended  to  exclude  the 
subject  of  religion  from  the  notice  of  the  national  power.  So 
the  people  understood  it  when  the  Constitution  was  submitted 
to  them  for  their  approval.  And  the  assurance  of  * '  the  per- 
fect liberty  of  conscience,  prevented  religious  differences  from 
interfering  with  zeal  for  a  closer  union." — Bancroft,  Hist. 
Const. ,  Vol.  //,  p.  239. 

As  we  have  seen,  the  contest  for  religious  right  in  Virginia 
in  1785-86,  had  awakened  a  deep  interest  in  the  subject  in  the 
other  States,  and  when  the  principle  of  this  natural  right  had 
triumphed  in  Virginia,  the  effect  of  it  was  felt  in  every  other 
State.  And  when  the  Constitution  came  before  them  with  a 
clear  recognition  of  the  same  principle,  this  was  a  feature 
immensely  in  its  favor  throughout  the  country. 

After  five  States  had  ratified  the  Constitution,  ' '  the  coun- 
try from  the  St.  Croix  to  the  St  Mary's  now  fixed  its  attention 
on  Massachusetts,  whose  adverse  decision  would  inevitably 
involve  the  defeat  of  the  Constitution." — Id. ,  p.  258.  Massa- 
chusetts ratified  the  Constitution,  and  in  the  doing  of  it  she 
considered  this  very  question  of  religious  right. 

One  member  of  the  convention  objected  against  the  pro- 
posed Constitution  that  ' '  there  is  no  provision  that  men  in 
power  should  have  any  religion;  a  Papist  or  an  infidel  is  as 
eligible  as  Christians. ' ' 

He  was  answered  by  three  members,  that  ' '  no  conceivable 
advantage  to  the  whole  will  result  from  a  test. ' ' 

Another  objected  that  ' '  it  would  be  happy  for  the  United 
States  if  our  public  men  were  to  be  of  those  who  have  a  good 
standing  in  the  church." 


106  THE    RIGHTS    OF    THE    PEOPLE. 

To  this  it  was  answered  that  "human  tribunals  for  the 
consciences  of  men  are  impious  encroachments  upon  the  pre- 
rogatives of  God.  A  religious  test,  as  a  qualification  for  office, 
would  have  been  a  great  blemish. ' ' 

Again  it  was  objected  that  the  absence  of  a  religious  test 
would  "  open  the  door  to  popery  and  the  Inquisition." 

And  to  this  it  was  answered:  "  In  reason  and  the  Holy 
Scriptures,  religion  is  ever  a  matter  between  God  and  individ- 
uals; and  therefore  no  man  or  men  can  impose  any  religious 
test  without  invading  the  essential  prerogative  of  the  Lord  Jesus 
Christ.  Ministers  first  assumed  this  power  under  the  Christian 
name;  and  then  Constantine  approved  of  the  practice  when  he 
adopted  the  profession  of  Christianity  as  an  engine  of  State 
policy.  And  let  the  history  of  all  nations  be  searched  from 
that  day  to  this,  and  it  will  appear  that  the  imposing  of  reli- 
gious tests  has  been  the  greatest  engine  of  tyranny  in  the  world. ' ' 
— Id.,  pp.  263,  271,  and  Blakety  s  American  State  Papers,  p. 
46;  Two  Republics,  pp.  695-6. 

As  the  action  of  Massachusetts,  by  its  example,  made  sure 
the  adoption  of  the  Constitution;  and  as  this  particular  point  of 
religious  right  was  specially  discussed  in  that  convention;  and 
was  decided  in  favor  of  the  Constitution  as  it  stood  with  refer- 
ence to  that  subject;  it  is  certain  from  this  fact  alone,  if  there 
were  no  other,  that  it  was  the  intent  of  the  Constitution  and 
the  makers  thereof  totally  to  exclude  religion  in  every  way 
from  the  notice  of  the  general  government. 

Yet  this  is  not  all.  In  the  Virginia  Convention  objection 
was  made  that  the  Constitution  did  not  fully  enough  secure 
religious  right,  to  which  Madison,  "  the  Father  of  the  Consti- 
tution," answered:— 

"There  is  not  a  shadow  of  right  in  the  general  government  to 
intermeddle  with  religion.  Its  least  interference  with  it  would  be  a 
most  flagrant  usurpation.  I  can  appeal  to  my  uniform  conduct  on  this 
subject,  that  I  have  warmly  supported  religious  freedom." — Blakety s 
American  State  Papers,  p.  44;  Two  Republics,  p.  695. 


RELIGIOUS    RIGHT    IN    THK    l.'NITKD    STATKS.  m; 

Nor  yet  was  this  all.  By  the  people  of  the  United  States 
this  was  not  deemed  sufficient.  Knowing  the  inevitable  tend- 
ency of  men  in  power  to  fall  in  love  with  power,  and  to  give 
themselves  credit  for  inherent  possession  of  it,  and  so  to  assert 
power  that  in  nowise  belongs  to  them — knowing  this,  the  peo- 
ple of  the  United  States  were  not  satisfied  with  the  silence  of 
the  national  charter,  nor  yet  with  this  clear  evidence  of  inten- 
tion to  exclude  religion  from  the  notice  of  the  national  power; 
they  demanded  positive  provisions  which  should,  in  so  many 
words,  prohibit  the  government  of  the  United  States  from 
touching  religion.  They  required  that  there  should  be  added 
to  the  Constitution,  articles  of  the  nature  of  a  Bill  of  Rights; 
and  that  religious  right  should  in  this  be  specifically  declared. 
A  letter  of  Jefferson's  dated  Paris,  February  2,  1788,  tells  the 
whole  story  as  to  this  point;  it  is  therefore  here  presented: — 

"  DEAR  SIR:  I  am  glad  to  learn  by  letters  which  come  down  to  the 
2oth  of  December,  that  the  new  Constitution  will  undoubtedly  be 
received  by  a  sufficiency  of  the  States  to  set  it  a-going.  Were  I  in 
America,  I  would  advocate  it  warmly  till  nine  should  have  adopted, 
and  then  as  warmly  take  the  other  side  to  convince  the  remaining  four 
that  they  ought  not  to  come  into  it  till  the  declaration  of  rights  is  an- 
nexed to  it;  by  this  means  we  should  secure  all  the  good  of  it,  and 
procure  as  respectable  an  opposition  as  would  induce  the  accepting 
States  to  offer  a  bill  of  rights;  this  would  be  the  happiest  turn  the 
thing  could  take.  I  fear  much  the  effects  of  the  perpetual  reeligibility 
of  the  President,  but  it  is  not  thought  of  in  America,  and  have,  there- 
fore, no  prospect  of  a  change  of  that  article;  but  I  own  it  astonishes 
me  to  find  such  a  change  wrought  in  the  opinions  of  our  countrymen 
since  I  left  them,  as  that  three-fourths  of  them  should  be  contented  to 
live  under  a  system  which  leaves  to  their  governors  the  power  of  tak- 
ing from  them  the  trial  by  jury  in  civil  cases,  FREEDOM  OF  RELIGION, 
freedom  of  the  press,  freedom  of  commerce,  the  habeas  corpus  laws, 
and  of  yoking  them  with  a  standing  army.  That  is  a  degeneracy  in 
the  principles  of  liberty  to  which  I  had  given  four  centuries  instead  of 
four  years,  but  I  hope  it  will  all  come  about." — Bancroft,  Hist.  Con., 
Vol.  77,  pp.  450,  460. 

To  see  how  fully  this  letter  stated  the  case,  it  is  necessary 


K>S  THE    RIGHTS    OF   THE   PEOPLE. 

only  to  read  the  first  ten  amendments  to  the  Constitution. 
These  ten  amendments  were  the  bill  of  rights  which  the  peo- 
ple required  to  be  added  to  the  Constitution  as  it  was  originally 
framed.  The  first  Congress  under  the  Constitution  met  March 
4,  1789,  and  in  September  of  the  same  year,  these  ten  amend- 
ments were  adopted.  And  in  the  very  first  of  these  provisions 
stands  the  declaration  of  the  freedom  of  religious  right  under 
the  United  States  Government.  Thus  it  reads: — 

"Congress  shall  make  no  law  respecting  an  establishment  of  reli- 
gion or  prohibiting  the  free  exercise  thereof." 

Thus  the  people  of  the  United  States,  in  their  own  capacity 
as  such,  made  the  supreme  law  of  the  land  positively  and  ex- 
plicitly to  declare  the  total  exclusion  of  religion  from  any  con- 
sideration whatever  on  the  part  of  the  national  government. 

Nor  was  the  matter  permitted  to  stand  even  thus  on  that 
question;  for  in  1797  the  treaty  with  Tripoli  was  made  and 
signed  by  President  Washington,  and  approved  by  the  Senate 
of  the  United  States,  in  which  it  is  declared  that — 

"The  government  of  the  United  States  is  not  in  any  sense  founded 
upon  the  Christian  religion." 

This  being  a  material  part  of  a  treaty  "made  under  the  au- 
thority of  the  United  States,"  it  thus  became  a  material  part  of 
"the  supreme  law  of  the  land. " — Article  VI  of  the  Constitu- 
tion, par.  2. 

Such  is  the  history,  such  the  establishment,  and  such  the 

perfect  supremacy   of    religious    right    in    the  United  States. 

Thus,  for  the  people  of  the  United  States  and  for  the  world, 

'  'religion  was  become  avowedly  the  attribute  of  man  and   not 

of  a  corporation," — Bancroft,  Hist.   Con.,    VoLII,  p.  325. 


CHAPTER   VI. 


RELIGIOUS    RIGHT    INVADED, 

ALTHOUGH  religious  right  was  so  carefully,  so  explicitly, 
and  so  completely,  excluded  from  the  cognizance  of  the  na- 
tional government  by  the  people  when  that  government  was 
made,  yet  it  is  a  fact  that  the  national  government,  in  all  its 
branches,  has  directly  and  explicitly  assumed  cognizance  of  re- 
ligion, instead  of  allowing  religion  to  remain  as  the  fathers  and 
the  Constitution  left  it — "avowedly  the  attribute  of  man,  and 
not  of  a  corporation. ' '  The  government  of  the  United  States 
has  once  more  made  it  avowedly  the  attribute  of  a  corporation 
and  not  of  man.  Instead  of  maintaining  the  ''new  order  of 
things' '  to  which  by  its  great  seal  the  nation  stands  pledged,  the 
government  of  the  United  States  has  gone  back  to  the  old  order 
of  things  which  it  was  the  purpose  of  our  governmental  fathers 
to  escape.  In  other  words,  and  in  short,  there  has  been 
wrought  a  counter-revolution. 

This  counter-revolution  was  accomplished  in  A.  D.  1892.  It 
began,  and  in  principle  was  consummated,  in  the  Supreme 
Court  of  the  United  States  in  a  decision  rendered  February  29, 
1892. 

The  said  decision  came  forth  in  this  way:1  In  1887  Congress 
enacted  a  law  forbidding  any  alien  to  come  to  this  country 
under  contract  to  perform  labor  or  service  of  any  kind.  The 
reason  of  that  law  was  that  large  contractors  and  corporations 


1  See  the  decision  in  full  at  eiul  of  this  book,  Appendix  C. 

.(   109  ) 


I  10  THE    RIGHTS    OF    THE    PKOI-M   I  . 

in  the  United  States  would  send  agents  to  Europe  to  employ 
the  lowest  of  the  people  whom  they  could  get  to  come  over 
and  work.  They  would  pay  their  expenses  to  this  country, 
and,  because  of  this,  require  them  to  work  at  so  much  the  smaller 
wages  after  they  arrived.  This  was  depreciating  the  price  that 
Americans  should  receive  for  their  labor,  and  therefore  Con- 
gress enacted  a  law  as  follows: — 

""Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
I  billed  Slates  of  America  in  Congress  assembled,  That  from  and  after 
the  passage  of  this  act  it  shall  be  unlawful  for  any  person,  company, 
partnership,  or  corporation,  in  any  manner  whatsoever  to  prepay  the 
transportation,  or  in  any  way  assist  or  encourage  the  importation  or 
migration  of  any  alien  or  aliens,  any  foreigner  or  foreigners,  into  the 
United  States,  its  Territories,  or  the  District  of  Columbia,  under  con- 
tract or  agreement,  parol  or  special,  expressed  or  implied,  made  pre- 
vious to  the  importation  or  migration  of  such  alien  or  aliens,  foreigner 
or  foreigners,  to  perform  labor  or  service  of  any  kind  in  the  United 
States,  its  Territories,  or  the  District  of  Columbia." 

Trinity  Church  corporation,  in  New  York  City,  employed 
a  preacher  in  England  to  come  over  here  and  preach  for  them. 
They  contracted  with  him  before  he  came.  He  was  an  alien, 
and  came  under  contract  to  perform  service  for  that  church. 
The  United  States  District  Attorney  entered  suit  against  the 
church  for  violating  this  law.  The  United  States  Circuit  Court 
decided  that  the  church  was  guilty,  and  rendered  judgment 
accordingly.  An  appeal  was  taken  to  the  Supreme  Court  of 
the  United  States,  upon  writ  of  error. 

The  Supreme  Court  reversed  the  decision,  first  upon  the 
correct  and  well-established  principle  that  "the  intent  of  the 
lawmaker  is  the  law."  The  court  quoted  directly  from  the 
reports  of  the  Senate  Committee  and  the  House  Committee 
who  had  the  bill  in  charge  when  it  was  put  through  Congress; 
and  these  both  said  in  express  terms  that  the  term  "laborer," 
or  "labor  or  service,"  used  in  the  statute,  was  intended  to 


RELIGIOUS    RIGHT    IXVADKI).  Ill 

mean  only  manual  labor  or  service,  and  ^.^professional  serv- 
ice of  any  kind.      For  instance,  the  Senate  Committee  said: — 

"The  committee  report  the  bill  back  without  amendment,  although 
there  are  certain  features  thereof  which  might  well  be  changed  or 
modified,  in  the  hope  that  the  bill  may  not  fail  of  passage  during  the 
present  session.  Especially  would  the  committee  have  otherwise 
recommended  amendments,  substituting  for  the  expression  '  labor 
and  service,'  whenever  it  occurs  in  the  body  of  the  bill,  the  words 
'manual  labor'  or  'manual  service,'  as  sufficiently  broad  to  accom- 
plish the  purposes  of  the  bill,  and  that  such  amendments  would 
remove  objections  which  a  sharp  and  perhaps  •  unfriendly  criticism 
may  urge  to  the  proposed  legislation.  The  committee,  however, 
believing  that  the  bill  in  its  present  form  will  be  construed  as  includ- 
ing only  those  whose  labor  or  service  is  manual  in  character,  and 
being  very  desirous  that  the  bill  become  a  law  before  the  adjourn- 
ment, have  reported  the  bill  without  change." — 6059  Congressional 
Record,  48th  Congress. 

Such  being"  the  plainly  declared  intent  of  the  law,  by  those 
who  made  it,  and  at  the  time  of  the  making  of  it,  there  was 
nothing  left  for  the  Supreme  Court  to  do  but  to  give  effect  to 
the  law  as  it  was  intended,  by  reversing  the  decision  of  the 
court  below.  And  in  all  reason,  when  the  court  had  thus  made 
plain  the  intent  of  the  law,  this  was  all  that  was  necessary  to 
the  decision  of  the  case. 

But  instead  of  stopping  with  this  that  was  all-sufficient,  the 
court  took  up  a  line  of  reasoning(?)  by  which  it  would  reach 
the  same  point  from  another  direction,  and  then,  as  the  result 
of  each  and  of  both,  decided  what  the  true  intent  of  the  law 
was,  and  reversed  the  decision  of  the  lower  court  accordingly. 
And  never  were  the  aptness  and  wisdom  of  that  piece  of  advice 
which  Abraham  Lincoln  once  gave  to  a  friend,  "Never  say 
what  you  need  not,  lest  you  be  obliged  to  prove  what  you 
cannot"  more  completely  illustrated  than  in  this  unnecessary 
line  of  argument  which  was  pursued  by  the  Supreme  Court  of 
the  United  States  in  this  decision  of  February  29,  1892. 


112  THE    RIGHTS    OF    THE    PEOPLE. 

The  court  unanimously  declared  that  "this  is  a  religious 
people, "  "a  religious  nation, ' '  and  even  '  'a  Christian  nation, ' ' 
and  that  such  is  "the  voice  of  the  entire  people."  In  support 
of  these  declarations  the  court  offered  considerable  argument, 
which  will  be  noticed  presently.  But  the  first  thing  to  be 
noted  is  that,  whether  the  court  supported  the  declarations  with 
considerable  argument  or  with  none  at  all,  it  had  no  shadow  of 
right  to  make  any  such  declarations. 

By  the  whole  history  of  the  making  of  the  Constitution,  by 
its  spirit,  and  by  its  very  letter,  the  government  of  the  United 
.States,  and,  therefore,  the  Supreme  Court  as  a  coordinate 
branch  of  the  government,  is  precluded  from  declaring  or 
arguing  in  favor  of  the  Christian  religion,  or  any  religion  what- 
ever. Let  it  not  be  forgotten  that  James  Madison,  in  persuad- 
ing the  Virginia  convention  to  ratify  the  Constitution,  gave 
the  assurance  that  ' '  there  is  not  a  shadow  of  right  in  the  gen- 
eral government  to  intermeddle  with  religion.  Its  least  inter- 
ference with  it  would  be  a  most  flagrant  usurpation. ' '  '*  Whereas 
it  is  certain  that  in  the  declarations  set  forth,  in  the  argument 
conducted,  in  the  citations  made,  and  in  the  conclusion  reached, 
in  this  decision,  the  Supreme  Court  did  "intermeddle  with 
religion,"  and  in  so  doing  did  that  which  it  had  "  not  a  shadow 
of  right ' '  to  do. 

The  first  words  of  the  court  in  this  line  are  as  follows: — 

"  But  beyond  all  these  matters  no  purpose  of  action  against  religion 
can  be  imputed  to  any  legislation,  State  or  national,  because  this  is  a 
religious  people.  This  is  historically  true.  From  the  discovery  of 
this  continent  to  the  present  hour  there  is  a  single  voice  making  this 
affirmation.". 

Every  citizen  of  the  United  States  knows  that  it  is  not  true, 
either  historically  or  otherwise,  that  this  is  a  religious  people. 
Not  even  a  majority  of  the  people  are  religious.  There  is  not 


*  Page  106  of  this  book. 


RELIGIOUS    RIGHT    INVADED.  113 

a  single  city  in  the  United  States  in  which  the  people  are 
religious — no,  not  a  single  town  or  village. 

That  is  to  say,  this  was  so  up  to  the  time  of  the  rendering 
of  this  decision,  February  29,  1892.  Since  that  of  course  the 
people  are  religious,  because  the  Supreme  Court  says  so.  To 
be  sure,  some  of  our  neighbors,  and  many  other  people  whom 
we  meet,  do  not  know  that  they  are  religious  people,  as  they 
have  never  chosen  to  be  so,  and  do  not  profess  it  at  all;  but 
all  that  makes  no  difference.  The  Supreme  Court  of  the 
United  States  has,  by  unanimous  decision,  declared  that  they 
are  religious  people,  and  it  must  be  so  whether  they  know  it 
or  not. 

Nor  is  this  all.  The  court  not  only  declares  that  this  is  a 
''religious  nation,"  but  that  it  is  a  "Christian  nation."  The 
people,  therefore,  are  not  only  religious  but  they  are  Chris- 
tians— yes,  Jews,  infidels,  and  all.  For  is  not  the  Supreme 
Court  the  highest  judicial  authority  in  the  United  States  ?  and 
what  this  court  declares  to  be  the  law,  is  not  that  the  law  ?  and 
when  this  court  lays  it  down  as  the  supreme  law — as  the  mean- 
ing of  the  Constitution — that  the  people  are  religious,  and  are 
Christians,  then  does  not  that  settle  the  question  ? — Not  at  all. 
The  very  absurdity  of  the  suggestion  only  demonstrates  that 
the  court  can  have  nothing  at  all  to  do  with  any  such  matters, 
and  shows  how  completely  the  court  transcended  its  powers 
and  went  out  of  the  right  way.  No;  men  are  not  made  reli- 
gious by  law,  nor  by  judicial  decision,  nor  by  historical  prece- 
dents. 

The  statement  that  "from  the  discovery  of  this  continent 
to  the  present  hour  there  is  a  single  voice, ' '  making  the  affir- 
mation that  this  nation  is  a  religious  people,  is  equally  wide  of 
the  mark,  for  at  the  time  of  the  making  of  this  national  gov- 
ernment there  was  a  new,  fresh  voice  heard  contradicting  the 
long,  dismal  monotone  of  the  ages,  and  declaring  for  this  ne\v 
nation  that  it  "is  not  in  any  sense  founded  upon  the  Christian 


114  THE    RIGHTS    OF    THE    PEOPLE. 

religion,"  and  that  it  can  never  of  right  have  anything  to  do 
with  religion — that  it  has  ''not  a  shadow  of  right  to  inter- 
meddle with  religion,"  and  that  "  its  least  interference  with  it 
would  be  a  most  flagrant  usurpation."  And  this  voice  it  was 
which  gave  rise  to  the  ' '  new  order  of  things ' '  for  this  country 
and  for  the  world.  Let  the  reader  think  for  only  a  moment 
of  the  history  presented  in  the  preceding  chapter,  and  then 
explain,  if  he  can,  how  the  court  could  make  such  a  statement 
as  this  which  we  have  quoted  and  commented  upon — remem- 
bering at  the  same  time,  too,  that  "  every  case  is  discussed  by 
the  whole  body  [of  the  court]  twice  over — once  to  ascertain 
the  opinion  of  the  majority,  which  is  then  directed  to  be  set 
forth  in  a  written  judgment;  then  again,  when  that  written 
judgment,  which  one  of  the  judges  has  prepared,  is  submitted 
for  criticism  and  adoption  as  the  judgment  of  the  court. "- 
Brycc,  American  Commonwealth,  chap.  22,  pay.  4.. 

THE    ARGUMENT    FROM    EUROPEAN    NATIONS. 

After  this  deliverance  the  court  proceeds  to  cite  historical 
evidences  to  prove  the  proposition  that  this  is  a  "religious 
people"  and  a  "Christian  nation."  The  first  is  as  follows: — 

"The  commission  to  Christopher  Columbus,  prior  to  his  sail  west- 
ward, is  from  '  Ferdinand  and  Isabella,  by  the  grace  of  God,  king  and 
queen  of  Castile,'  etc.,  and  recites  that  'it  is  hoped  that  by  God's 
assistance  some  of  the  continents  and  islands  in  the  ocean  will  be 
discovered,'  etc." 

What  religion  did  Ferdinand  and  Isabella  have  in  mind 
when  they  issued  that  document?  What  religion  did  they 
profess?  And  what  religion  did  they  possess,  too? — The 
Catholic  religion,  to  be  sure.  And  not  only  that,  it  was  the 
Catholic  religion  with  the  Inquisition  in  full  swing;  for  it  was 
Ferdinand  and  Isabella  who  established  the  Inquisition  in  Spain 
under  the  generalship  of  Torquemada,  and  who,  because  Spain 
was  a  "Christian  nation,"  sentenced  to  confiscation  of  all  goods 


RELIGIOUS    RIGHT    INVADED.  115 

and  to  banishment  every  Jew  who  would  not  turn  Catholic.3 
And  by  virtue  of  such  religious  activity  as  this  Ferdinand  and 
Isabella  fairly  earned  as  an  everlasting  reward,  and  by  way  of 
preeminence,  the  title  of  "THE  CATHOLICS."  And  this 
is  the  first  piece  of  "historical"  authority  by  which  the 
Supreme  Court  of  the  United  States  adjudges  American  citi- 
zens "to  be  a  religious  people,"  and  by  which  that  court 
decides  that  this  is  a  ' 'Christian  nation. ' ' 

Now  that  is  quoted  to  prove  that  this  is  a  '  'religious  people' ' 
and  a  "Christian  nation,"  and  it  is  declared  that  this  language 
of  Ferdinand  and  Isabella,  and  the  language  of  the  Constitu- 
tion of  the  United  States,  ' '  have  one  meaning. ' ' 

Then,  in  view  of  that  quotation  and  this  decision,  should  it 
be  wondered  at  if  the  Catholic  Church  should  claim  that  this  is  so 
indeed,  and  should  demand  favors  from  the  government  as  such? 
Everybody  knows  that  the  Catholic  Church  already  is  not  slow 
to  take  part  in  political  questions,  to  interfere  with  the  govern- 
ment, and  to  have  the  government  recognize  the  Catholic 
Church  and  give  it  every  year  from  the  public  treasury  nearly 
$400,000  of  the  money  of  all  the  people.  The  people  know 
that  this  is  already  the  case.  And  now  when  this  Catholic 
document  is  cited  by  the  Supreme  Court  to  prove  this  a  Chris- 
tian nation;  and  when  that  court  declares  that  this  document 
and  the  Constitution  have  one  meaning,  should  it  be  thought 
strange  if  the  Catholic  Church  should  claim  that  that  is  cor- 
rect, and  act  upon  it. 

However,  it  is  not  denominational  or  sectarian  Christianity 
that  the  court  proposes  to  recognize  as  the  national  religion 
here,  but,  as  was  attempted  in  Virginia,  simply  "Christianity, 
general  Christian ty. "  Accordingly,  British  documents  arc- 
next  quoted  which  designate  the  "true  Christian  faith"  as 
professed  in  the  Church  of  England  in  colonial  times.  And 
here  is  the  quotation: — 

3 This  sentence  was  inflicted,  too,  after  the  commission  to  Christopher  Columbus 
tinder  which  he  discovered  this  "Christian  nation." 


Il6  THE   RIGHTS   OF   THE   PEOPLE. 

"The  first  colonial  grant,  that  made  to  Sir  Walter  Raleigh  in  1584, 
was  from  '  Elizabeth,  by  the  grace  of  God;  of  England,  Fraunce,  and 
Ireland,  queene,  Defender  of  the  Faith,'  etc.;  and  the  grant  author- 
ized him  to  enact  statutes  for  the  government  of  the  proposed  Colony; 
Provided,  That '  they  be  not  against  the  true  Christian  faith  now  pro- 
fessed in  the  Church  of  England.'  .  .  .  Language  of  a  similar 
import  may  be  found  in  the  subsequent  charters,  .  .  .  and  the 
same  is  true  of  the  various  charters  granted  to  other  colonies.  In  lan- 
guage more  or  less  emphatic,  is  the  establishment  of  the  Christian 
religion  declared  to  be  one  of  the  purposes  of  the  grant."  * 

It  is  true  that  the  "establishment  of  the  Christian  religion 
was  one  of  the  purposes' '  of  all  these  grants.  But  are  the 
American  people  still  bound  by  the  purposes  and  intentions  of 
Queen  Elizabeth  and  her  British  successors?  Does  Britain  still 
rule  America,  that  the  intent  and  purposes  of  British  sover- 
eigns shall  be  held  binding  upon  the  American  people? — Nay, 
nay.  After  all  these  documents  were  issued  there  was  the 
American  Revolution  and  the  Declaration  of  Independence, 
by  which  it  was  both  declared  and  demonstrated  that  these 
Colonies  are  and  of  right  ought  to  be  free  and  independent 
States — free  and  independent  of  British  rule,  and  the  intents 
and  purposes  of  British  sovereigns  in  all  things,  religious  as  well 
as  civil.  And  then  after  that  the  national  Constitution  was 
formed,  expressly  repudiating  "establishments  of  the  Christian 
religion." 

It  is  true  that  the  "establishment  of  the  Christian  religion 
was  one  of  the  purposes"  of  these  grants.  But  shall  the  Con- 
stitution of  the  United  States  count  for  nothing,  when  it  positively 
prohibits  any  religious  test,  and  any  establishment  of  religion 
of  any  kind  ?  Shall  the  supreme  law  of  this  nation  count  for 
nothing  in  its  solemn  declaration  that  "  the  government  of. the 


4  It  may  very  properly  be  noted  here,  in  passing,  that  this  and  the  previous  quota- 
tion just  as  certainly  prove  the  divine  right  of  rulers  in  this  country,  as  they  prove 
that  this  is  "a  religious  people"  or  "a  Chrisian  nation."  And  this  is  the  logic  of  the 
discussion,  too;  for  it  is  plainly  declared  that  these  documents  and  the  Constitution 
have  all  one  languge  and  "one  meaning." 


RELIGIOUS    RIGHT    INVADED.  II 7 

United  States  is  not  in  any  sense  founded  on  the  Christian  re- 
ligion" ?  Has  the  Supreme  Court  of  the  United  States  the 
right  to  supplant  the  supreme  law  of  this  land  with  the  intents 
and  purposes  of  the  sovereigns  of  England  ?  Is  the  Supreme 
Court  of  the  United  States  the  interpreter  of  the  supreme  law 
of  the  United  States?  or  is  it  the  interpreter  of  the  intents  and 
purposes  of  the  sovereigns  of  England,  France,  and  Ireland, 
' '  Defenders  of  the  Faith' '  ? 

It  is  true  that  "  the  establishment  of  the  Christian  religion 
was  one  of  the  purposes"  of  these  grants,  and  that  purpose 
was  accomplished  in  the  Colonies  settled  under  those  grants. 
But,  though  all  this  be  true,  what  possible  bearing  can  that 
rightly  have  on  any  question  under  the  Constitution  and  laws 
of  the  national  government?  The  national  system  was  not 
intended  to  be  a  continuation  of  the  colonial  system;  on  the 
contrary,  it  was  intended  to  be  distinct  from  both  the  colonial 
and  State  systems.  And  the  chief,  the  very  fundamental,  dis- 
tinction that  the  national  system  was  intended  to  have  from 
both  the  others,  was  in  its  complete  separation  from  every  idea 
of  an  establishment  of  religion. 

And  though  it  be  true  that  all  the  Colonies  except  Rhode 
Island  had  establishments  of  "the  Christian  religion"  in  pur- 
suance of  the  purpose  of  these  British  grants;  and  though  all 
the  States  except  Rhode  Island  and  Virginia  had  these  same 
establishments  of  "the  Christian  religion"  when  the  national 
system  was  organized;  yet  this  had  no  bearing  whatever  upon 
the  national  system  except  to  make  all  the  more  emphatic  its 
total  separation  from  them  all,  and  from  every  conception  of 
an  establishment  of  ' '  the  Christian  religion. ' ' 

Let  us  reduce  to  a  short  argument  this  reasoning  of  the 
court.  The  proposition  to  be  proved  is,  "This  is  a  Christian 
nation."  The  principal  statement  is,  "The  establishment  of 
the  Christian  religion  was  one  of  the  purposes' '  of  the  British 
grants  here.  We  have  then  these  two  statements  of  the  court. 


Il8  THE    RIGHTS    OF    THE    PEOPLE. 

But  this  is  not  enough;  we  must  know  how  the  conclusion  is 
derived  from  the  principal  statement. 

So  far  the  argument  stands  merely  thus: — 

(a)  'The  establishment  of  the  Christian  religion  was  one 
of  the  purposes  of  the  British  grants  in  America. ' ' 

(b)  Consequently,  "  this  is  a  Christian  nation." 

But  this  will  never  do;  there  is  a  destructive  hiatus  between 
the  antecedent  and  the  consequent.  This  blank  must  be  filled, 
or  else  there  is  a  total  absence  of  reasoning,  and  the  conclusion 
is  nothing.  With  what,  then,  shall  this  blank  be  filled?  It 
could  be  filled  thus:  — 

(«)  "The  establishment  of  the  Christian  religion  was  one 
of  the  purposes  of  the  British  grants  in  America. ' ' 

(^)  America  is  subject  to  British  sovereignty. 

(c)  Consequently,  "  this  is  a  Christian  nation." 

This  would  complete  the  formula,  would  give  the  conclu- 
sion something  to  rest  upon,  and  would  connect  it  with  the 
chief  statement.  But  the  difficulty  with  it  is  that  it  is  not  true. 
It  is  not  only  contrary  to  the  history  and  the  experience  of  the 
nations  concerned,  but  it  is  contrary  to  the  argument  of  the 
court  itself;  for  the  court,  in  its  argument,  does  recognize  and 
name  the  Declaration  of  Independence  and  the  national  Consti- 
tution. This  thought,  then,  is  not  allowable  in  the  argument. 

What  thought,  then,  will  fit  the  place  and  make  the  argu- 
ment complete  ?  There  is  one,  and  only  one,  possible  thought 
that  can  fit  the  place  and  make  the  connection  between  the 
court's  principal  statement  and  its  conclusion.  That  thought 
is  given  by  the  court  itself  as  the  turning  point,  and  is  indeed 
the  pivot — the  very  crucial  test — of  the  whole  argument  pre- 
sented by  the  court.  Here  is  the  argument  complete: — 

(a)  ' '  The  establishment  of  the  Christian  religion  is  declared 
to  be  one  of  the  purposes  of  the  [British]  grants  [in  Amer- 
ica]." 


RELIGIOUS    RIGHT    INVADKD.  I  19 

(b)  This  declaration  and  the  national  Constitution  have  one 
language  and  ' '  one  meaning. ' '  5 

(c)  Consequently,  ' '  this  is  a  Christian  nation. ' ' 

This  and  this  alone  is  the  course  of  reasoning  by  which  the 
court  reaches  its  conclusion  that  ' '  this  is  a  Christian  nation. ' ' 
This  is  the  thought,  and,  indeed,  those  are  the  words,  of  the 
court.  The  thing  is  accomplished  solely  by  making  the  lan- 
guage of  the  Constitution  bear  ' '  one  meaning ' '  with  these 
quoted  declarations,  whose  purpose  was  plainly  ' '  the  establish- 
ment of  the  Christian  religion. ' ' 

But  some  may  say,  This  formula  encounters  the  same  diffi- 
culty as  did  the  other  one,  viz. ,  it  is  not  true,  and  is  contrary 
to  all  the  history  and  experience  of  the  nation  in  the  times  of 
the  making  of  the  Constitution.  It  is  true,  as  the  preceding 
chapters  of  this  book  plainly  show,  that  the  connecting  state- 
ment between  the  premise  and  the  conclusion  in  this  latter  for- 
mula is,  in  itself,  as  false  as  is  that  one  in  the  former.  It  is 
true  that  the  Constitution  was  never  intended  to  bear  any  such 
meaning  as  is  here  given  to  it  in  harmony  with  the  declarations 
quoted.  It  was  both  intended  and  declared  to  bear  a  meaning 
directly  the  opposite  of  that  which  these  declarations  bear. 
And  if  any  other  person,  persons,  or  tribunal,  on  earth  (except 
all  the  people)  had  said  that  such  is  the  meaning  of  the  Consti- 
tution, it  would  have  amounted  to  nothing.  Such  a  statement 
made  by  the  Supreme  Court,  however,  does  amount  to  some- 
thing. And — 

HERE    IS    THE    DECISIVE    POINT. 

The  Supreme  Court  of  the  United  States  is  constitutionally 
authorized  to  interpret  and  declare  the  meaning  of  the  Consti- 


5  Immediately  after  quoting  the  First  Amendment  to  the  Constitution,  along  with 
all  these  others,  the  court's  words  are  these:— 

"  There  is  no  dissonance  in  these  declarations^  !  !  )  There  is  a  universal  lan- 
guage pervading  them  all,  having  one  meaning.(  !  !  !  )  They  affirm  and  reaffim  that 
this  is  a  religious  nation." 


120  THE    RIGHTS    OF    TI1K    PKOl'LK. 

tution.  Whatever  the  Supreme  Court  says  the  meaning  of  the 
Constitution  is,  that  is  legally  its  meaning  so  long  as  said  deci- 
sion stands.  The  meaning  which  the  -court  gives  to  the  Con- 
stitution may  be  utterly  false,  as  in  the  Drecl  Scott  decision 
and  in  this  one,  but  that  matters  nothing;  the  false  meaning 
stands  as  firmly  as  though  it  were  true,  until  the  decision  is 
reversed  either  by  the  Supreme  Court  itself,  or  by  the  higher 
court — the  people — as  was  done  in  the  matter  of  the  Dred 
Scott  decision,  of  which  this  decision  now  under  consideration 
is  a  complete  parallel. 

Such,  then,  is  indisputably  the  meaning  which  the  Supreme 
Court  of  the  United  States  has  given  to  the  Constitution  of  the 
United  States — a  meaning  the  purpose  of  which  is  ' '  the  estab- 
lishment of  the  Christian  religion."  This  is  a  meaning  which, 
by  every  particle  of  evidence  derivable  from  the  makers  and 
the  making  of  the  Constitution,  is  demonstrated  to  be  directly 
the  reverse  of  that  which  it  was  intended  to  bear  and  which  it 
did  bear  while  the  makers  of  it  lived.  Therefore,  as  certainly 
as  logic  is  logic  and  truth  is  truth,  it  is  demonstrated  that  in 
this  decision  the  Supreme  Court  of  the  United  States  has  sub- 
verted the  Constitution  of  the  United  States  in  its  essential 
meaning  as  regards  the  Christian  religion  or  the  establish- 
ment thereof. 

Nor  was  the  court  content  with  a  little.  These  declarations 
of  Ferdinand  and  Isabella,  Elizabeth,  James  I.,  et  a/.,  were  not 
sufficient  to  satisfy  the  zeal  of  the  court  in  behalf  of  ' '  Chris- 
tianity, general  Christianity,"  as  the  established  and  national 
religion  here;  but  it  must  needs  heap  upon  these  fifteen  more, 
from  different  sources,  to  the  same  purpose.  Having  extracted 
the  real  substance  of  the  court's  argument  throughout,  in  the 
foregoing  analysis,  it  will  not  be  necessary  for  us  to  apply  the 
set  formula  to  each  citation  in  all  the  long  list.  This  the  reader 
can  readily  enough  do  in  his  own  mind.  We  shall,  however, 
present  all  of  the  court's  quotations  and  its  application  of  them, 
with  such  further  remarks  as  may  be  pertinent. 


RELIGIOUS    RIGHT    INVADED.  121 

FROM   COLONIAL   CHARTERS. 

Next  following1  the  citations  from  Ferdinand  and  Isabella, 
Elizabeth,  and  the  others  of  Britain,  the  court  sets  forth  docu- 
ments of  the  New  England  Puritans  which  also  plainly  declare 
that  ' '  the  establishment  of  the  Christian  religion  was  one  of 
the  purposes ' '  of  their  settlement  in  the  land.  Here  is  the 
language  of  the  court  and  of  the  Puritans: — 

"  The  celebrated  compact  made  by  the  Pilgrims  in  the  Mayflower, 
1620,  recites:  *  Having  undertaken  for  the  glory  of  God  and  advance- 
ment of  the  Christian  faith,  and  the  honor  of  our  king  and  country,  a 
voyage  to  plant  the  first  Colony  in  the  northern  parts  of  Virginia;  Do 
by  these  Presents,  solemnly  and  mutually,  in  the  presence  of  God  and 
one  another,  covenant  and  combine  ourselves  together  into  a  civil 
Body  Politick,  for  our  better  ordering  and  preservation  and  further- 
ance of  the  ends  aforesaid.' 

'  "The  fundamental  orders  of  Connecticut,  under  which  a  provi- 
sional government  was  instituted  in  1638-1639,  commence  with  this 
declaration: — 

l<  'Forasmuch  as  it  hath  pleased  the  Almighty  God  by  the  wise  dis- 
pensation of  his  diuyne  pruidence  so  to  order  and  dispose  of  things 
that  we,  the  inhabitants  and  residents  of  Windsor,  Hartford,  and 
Wethersfield  are  now  cohabiting  and  dwelling  in  and  upon  the  River 
Conectecotte  and  the  lands  thereunto  adioyneing;  and  well  knowing 
where  a  people  are  gathered  together  the  word  of  God  requires  that 
to  mayntayne  the  peace  and  vnion  of  such  a  people  there  should  be 
an  orderly  and  decent  government  established  according  to  God,  to 
order  and  dispose  of  the  affayres  of  the  people  at  all  seasons  as  occa- 
sion shall  require;  doe  therefore  assotiate  and  conioyne  ourselves  to 
be  as  one  publike  State  or  Comonwelth;  and  doe,  for  ourselves  and 
our  successors  and  such  as  shall  be  adioyned  to  vs  att  any  tyme  here- 
after, enter  into  combination  and  confederation  togather,  to  mayn- 
tayne and  presearue  the  liberty  and  purity  of  the  gospell  of  our  Lord 
Jesus  wch  we  now  prfesse,  as  also  the  disciplyne  of  the  churches,  wch 
according  to  the  truth  of  the  said  gospell  is  now  practised  amongst 


It  is  worthy  of  remark  in  this  connection,  that  by  this  '  'his- 
torical" citation,   the  Supreme  Court  just  as  certainly  justifies 


122  THE    RIGHTS    OF    THE    PEOPLE. 

the  employment  of  the  "civil  body  politick"  for  the  mainte- 
nance of  the  '  'disciplyne  of  the  churches, "  as  by  this  and  the 
previous  ones  it  establishes  the  Christian  religion  as  the  religion 
of  this  nation.  For  it  was  just  as  much  and  as  directly  the 
intention  of  those  people  to  maintain  the  discipline  of  the 
churches,  as  it  was  to  '  'preserve  the  liberty  and  purity  of  the 
gospel  then  practiced' '  among  them.  Indeed,  it  was  only  by 
maintaining  the  discipline  of  the  churches  that  they  expected 
to  preserve  "the  liberty  and  purity  of  the  gospell"  as  there 
and  then  practiced.  All  their  history  shows  that  they  never 
thought,  nor  made  any  pretensions,  of  doing  it  in  any  other  way. 
And,  in  fact,  order  number  four  of  these  very  '  'fundamental 
orders' '  required  that  the  governor  of  that  '  'publike  State  or 
Comonwelth' '  should  '  'be  always  a  member  of  some  approved 
congregation,"  and  should  take  an  oath  that  he  would  "further 
the  execution  of  justice  according  to  the  rule  of  God's  word; 
so  help  me  God  in  the  name  of  the  Lord  Jesus  Christ. ' ' 

We  know,  and  it  can  be  abundantly  shown,  that  the  main- 
tenance of  flie  discipline  of  the  churches  by  the  power  of  '  'the 
civil  Body  Politick"  is  precisely  what  the  churches  of  the 
United  States  are  aiming  at,  and  is  what  they  design  to  accom- 
plish through  the  enforcement  of  national  Sunday  laws.  This 
is  what  is  done  always  in  the  enforcement  of  Sunday  laws, 
whether  State  or  national.  And  all  this  purpose,  the  Supreme 
Court  fully  sanctions  and  justifies  in  its  (mis)  interpretation  of 
the  national  Constitution,  when  it  declares  that  the  language  of 
these  "fundamental  orders  of  Connecticut"  and  the  language 
of  the  national  Constitution  is  "one  language,"  "having  one 
meaning. ' ' 

The  court   proceeds: — 

"In  the  charter  of  privileges  granted  by  William  Penn  to  the  prov- 
ince of  Pennsylvania,  in  1701,  it  is  recited:  'Because  no  People  can  be 
truly  happy,  though  under  the  greatest  Enjoyment  of  Civil  Liberties, 
if  abridged  of  the  Freedom  of  their  Consciences,  as  to  their  Religious 


RELIGIOUS    RIGHT    INVADED.  123 

Profession  and  Worship;  And  Almighty  God  being  the  only  Lord  of 
Conscience,  Father  of  Lights  and  Spirits;  and  the  Author  as  well  as 
Object  of  all  divine  Knowledge,  Faith,  and  Worship,  who  only  doth 
enlighten  the  Minds,  and  persuade  and  convince  the  Understandings 
of  People,  I  do  hereby  grant  and  declare,'  etc." 

Yes,  and  the  same  document  provided  that  in  order  to 
'  'be  capable  to  serve  the  government  in  any  capacity' '  a  per- 
son must  '  'also  profess  to  believe  in  Jesus  Christ,  the  Saviour 
of  the  world. ' '  And  according  to  the  same  document,  in 
order  to  be  assured  that  "he  should  in  no  ways  be  molested," 
etc. ,  a  person  living  in  that  province  was  required  to  '  'confess 
and  acknowledge  the  only  Almighty  and  Eternal  God  to  be 
Creator,  Upholder,  and  Ruler  of  the  world." 

FROM    THE    DECLARATION     OF    INDEPENDENCE. 

Still  citing  proof  that  this  is  a  Christian  nation,  the  court 
continues  in  the  following  queer  fashion : — - 

"Coming  nearer  to  the  present  time,  the  Declaration  of  Independ- 
ence recognizes  the  presence  of  the  Divine  in  human  affairs  in  these 
words:  'We  hold  these  truths  to  be  self-evident,  that  all  men  are 
created  equal,  that  they  are  endowed  by  their  Creator  with  certain  un- 
alienable  Rights,  that  among  these  are  Life,  Liberty,  and  the  pursuit 
of  Happiness.'  'We,  therefore,  the  Representatives  of  the  United 
States  of  America,  in  General  Congress  Assembled,  appealing  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions,  do, 
in  the  Name  and  by  Authority  of  the  good  People  of  these  Colonies, 
solemnly  publish  and  declare,'  etc.  'And  for  the  support  of  this  Dec- 
laration, with  a  firm  reliance  on  Divine  Providence,  we  mutually 
pledge  to  each  other  our  Lives,  our  Fortunes,  and  our  sacred  Honor. ' >: 

It  is  undoubtedly  true  that  the  Declaration  of  Independ- 
ence does  recognize  the  presence  of  the  divine  in  human 
affairs.  But  it  is  a  hazardous  piece  of  logic  to  conclude  from 
this  that  "this  is  a  Christian  nation."  For  what  nation  has 
there  ever  been  on  earth  that  did  not  recognize  the  presence  of 
the  divine  in  human  affairs?  But  it  would  be  rather  risky  to 


124  THE    RIGHTS    OF    THE    PEOPLE. 

conclude  from  this  that  all  nations  have  been  and  are  "Chris- 
tian nations." 

But,  it  may  be  said,  the  Declaration  recognizes  the  "Crea- 
tor," and  "the  Supreme  Judge  of  the  world,"  as  well  as 
"Divine  Providence."  Yes,  that  is  true,  too.  And  so  do  the 
Turks,  the  Arabs,  the  Hindoos,  and  others;  but  that  would 
hardly  justify  the  Supreme  Court  or  anybody  else  in  conclud- 
ing and  officially  declaring  that  Turkey,  Arabia,  and  Hindoo- 
stan,  are  Christian  nations. 

But  it  may  still  be  said  that  those  who  made  this  Declara- 
tion used  these  expressions  with  none  other  than  the  God  of 
Christianity  in  mind.  This  may  or  may  not  be  true,  accord- 
ing to  the  way  of  thinking  of  the  respective  individuals  who 
signed  or  espoused  the  Declaration.6  But  whatever  these  ex- 
pressions may  have  meant  to  those  who  used  them  at  the  time, 
it  is  certain  that  they  did  not  mean  what  the  Supreme  Court 
has  here  made  them  mean.  Of  this  we  have  the  most  posi- 
tive evidence. 

Thomas  Jefferson  was  the  author  of  the  .Declaration  of  In- 
dependence, and  from  that  day  and  forward  he  exerted  all  his 
powers  to  dfoestablish  "the  true  Christian  faith  professed  in  the 
Church  of  England,"  which,  according  to  the  purpose  of  Eliza- 
beth and  her  successors,  had  been  established  in  Virginia  for 
more  than  a  hundred  and  fifty  years.  When  this  was  accom- 
plished, and  an  attempt  was  made  to  establish  "Christianity, 
general  Christianity,"  under  the  title  of  "the  Christian  reli- 
gion," Jefferson  again  enlisted  all  his  powers  to  defeat  the  at- 
tempt, and  it  was  defeated.  And  to  the  day  of  his  death,  the 
one  thing  in  all  his  career  upon  which  he  looked  with  the  most 
satisfaction  was  this  disestablishment  of  "the  Christian  reli- 


«  Thomas  Paine,  though  not  a  signer  of  the  Declaration,  had  no  small  part  in  bring- 
ing it  about,  and  it  is  certain  that  he  did  most  heartily  support  it.  And  it  is  evident 
enough  that  he  did  not  use  these  terms  with  reference  to  Christianity,  nor  with  the 
intention  to  establish  a  "Christian  nation"  here.  Ethan  Allen,  the  Green  Mountain 
hero  was  another,  and  there  were  thousands  of  others. 


RELIGIOUS    RIGHT    INVADED.  125 

gion"  in  Virginia.  And  now,  lo!  this  document  of  which 
Jefferson  was  the  author  is  quoted  by  the  Supreme  Court  'of  the 
United  States,  and  classed  with  documents  '  'one  of  the  pur- 
poses" of  which  was  "the  establishment  of  the  Christian  reli- 
gion;" and,  as  having  "one  meaning"  with  these,  is  used  to 
prove  a  proposition  with  reference  to  this  nation  which  Jefferson 
spent  all  his  powers  and  the  best  part  of  his  life  in  combating. 
What  would  Jefferson  himself  say  to  this  use  of  his  language 
were  he  here  to  read  this  decision? 7 

Except  in  the  matter  of  the  Dred  Scott  decision,  a  more 
perverse  use  of  the  language  of  the  Declaration  of  Independ- 
ence certainly  never  was  made  than  is  thus  made  in  this 
"Christian  nation"  decision,  February  29,  1892. 

FROM    THE  STATES. 

Next  the  court  says: — 

"If  we  examine  the  constitutions  of  the  various  States,  we  find  in 
them  a  constant  recognition  of  religious  obligations.  Every  constitu- 
tion of  every  one  of  the  forty-four  States  contains  language  which 
either  directly  or  by  clear  implication  recognizes  a  profound  reverence 
for  religion  and  an  assumption  that  its  influence  in  all  human  affairs 
is  essential  to  the  well-being  of  the  community." 

This  is  all  true  enough  in  itself;  but  even  though  it  be  true 
respecting  all  the  States,  that  can  have  no  bearing  whatever  in 
any  matter  respecting  the  nation  or  the  national  jurisdiction  or 
the  consideration  of  any  national  question.  The  Constitution 
declares  that — 

"The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

When  the  nation  was  made,  eleven  of  the  States  had  estab- 
lished religions,  the  most  of  them  had  slavery,  and  these  insti- 
tutions were  reserved  to  the  control  of  the  States  themselves. 


Pages  go,  92  of  this  book. 


126  THE    RIGHTS    OF    THE    PEOPLK. 

This  is  one  reason  why  the  tenth  amendment  was  made  to 
read  as  it  does.  These  matters  belonged,  and  were  left,  to  the 
jurisdiction  of  the  States,  and  with  them  the  national  govern- 
ment could  have  nothing  at  all  to  do.  And  so  it  continued 
until  the  adoption  of  the  fourteenth  amendment,  by  which  the 
control  as  to  both  slavery  and  established  religions  was  pro- 
hibited to  the  States  by  the  national  Constitution.  So  that, 
admitting  the  assumption  of  the  court  that  the  States  still  have 
control  of  religion  as  at  the  beginning,  the  court's  conclusion 
does  not  follow;  because  then  the  true  argument  is  this:  No 
power  in,  over,  or  concerning  religion  has  been  delegated  to 
the  United  States — the  nation — by  the  Constitution,  nor  has 
such  power  been  prohibited  by  it  to  the  States.  All  power 
and  jurisdiction,  therefore,  in  all  questions  and  all  matters  of 
whatever  kind  concerning  religion,  are  reserved  and  belong 
exclusively  to  the  States  or  to  the  people. 

But  since  the  fourteenth  amendment,  this  assumption  even 
is  entirely  baseless.     See  further  on  this  point  in  chapter  1 3. 

More  than  this:  As  all  power  respecting  religion  has  actu- 
ally been  prohibited  to  the  United  States  by  the  Constitution, 
ovi-n  though  all  the  forty-four  States  had  one  and  the  same 
religion,  and  that  specifically  and  by  law  established,  this 
would  mean  absolutely  nothing,  and  could  never  rightly  be 
made  to  mean  anything,  to  the  United  States,  i.  e. ,  to  the 
nation.  The  Supreme  Court  of  the  nation  has  no  right  to 
cite  religious  characteristics  of  the  States,  and  then  from 
these  draw  conclusions  and  make  official  declarations  that 
the  nation  is  "religious"  or  "Christian"  or  anything  else  in 
the  way  of  religion.  This  is  why  Madison  said  that  "there  is 
not  a  shadow  of  right  in  the  general  government  to  intermeddle 
with  religion."  And  this  is  why  he  also  declared  that  the 
"least  interference"  of  the  general  government  with  religion 
"would  be  a  most  flagrant  usurpation."  This  because  in  so 
doing  it  would  be  intruding  into  a  field,  and  entering  upon  the 


RELIGIOUS    RIGHT    INVADED.  127 

consideration  of  that  which  is  not  only  reserved  but  positively 
prohibited,  both  to  the  nation  and  to  the  States.8 

As  no  power  in  matters  of  religion  has  been  delegated  to  the 
nation,  but,  on  the  contrary,  all  such  power  has  been  positively 
prohibited  to  the  nation,  and  also  to  the  States,  so  the  Supreme 
Court  of  the  nation  was  trebly  precluded  from  drawing  from 
the  example  of  the  States  anything  on  the  subject  of  religion, 
and  was  also  trebly  precluded  from  ever  making  any  such 
declaration  as  that  "this  is  a  Christian  nation."  Since  the 
fourteenth  amendment  the  matter  of  religion  as  respects  both 
States  and  nation  belongs  exclusively  to  the  people. 

It  is  worth  while,  however,  to  give  the  citations  which  the 
court  makes  from  the  State  constitutions,  that  the  use  which 
the  court  makes  of  the  national  Constitution  in  connection 
therewith  may  be  clearly  seen.  So  here  they  are  exactly  as 
the  court  sets  them  forth: — 

"This  recognition  may  be  in  the  preamble,  such  as  is  found  in  the 
Constitution  of  Illinois,  1870:  'We,  the  people  of  the  State  of  Illinois, 
grateful  to  Almighty  God  for  the  civil,  political,  and  religious  liberty 
which  he  hath  so  long  permitted  us  to  enjoy,  and  looking  to  him  for  a 
blessing  upon  our  endeavors  to  secure  and  transmit  the  same  unim- 
paired to  succeeding  generations.'  etc. 

"It  maybe  only  in  the  familiar  requisition  that  all  officers  shall 
take  an  oath  closing  with  the  declaration  'so  help  me  God.'  It  may 
be  in  clauses  like  that  of  the  constitution  of  Indiana,  1816,  Article  XI, 
section  4:  'The  manner  of  administering  an  oath  or  affirmation  shall 
be  such  as  is  most  consistent  with  the  conscience  of  the  deponent,  and 
shall  be  esteemed  the  most  solemn  appeal  to  God.y  Or  in  provisions 
such  as  are  found  in  Articles  XXXVI  and  XXXVII  of  the  Declaration 
of  Rights  of  the  Constitution  of  Maryland,  1867:  'That  as  it  is  the  duty  of 
every  man  to  worship  God  in  such  manner  as  he  thinks  most  acceptable 
to  him,  all  persons  are  equally  entitled  to  protection  in  their  religious 
liberty;  wherefore,  no  person  ought,  by  any  law,  to  be  molested  in  his 
person  or  estate  on  account  of  his  religious  persuasion  or  profession,  or 
for  his  religious  practice,  unless ',  under  the  color  of  religion,  he  shall  dis- 


8  Look  again  at  chapter  3,  "What  Is  the  Nation  ? 


128  THE    RIGHTS   OF    THE    PEOPLE. 

turb  the  good  order,  peace,  or  safety  of  the  State,  or  shall  infringe  the 
laws  of  morality,  or  injure  others  in  their  natural,  civil,  or  religious 
rights;  nor  ought  any  person  to  be  compelled  to  frequent  or  maintain 
or  contribute,  unless  on  contract,  to  maintain  any  place  of  worship, 
or  any  ministry;  nor  shall  any  person,  otherwise  competent,  be  deemed 
incompetent  as  a  witness,  or  juror,  on  account  of  his  religious  belief: 
Provided,  He  believes  in  the  existence  of  God,  and  that,  under  his  dis- 
pensation, such  person  will  be  held  morally  accountable  for  his  acts, 
and  be  rewarded  or  punished  therefor,  either  in  this  world  or  the 
world  to  come.  That  no  religious  test  ought  ever  to  be  required  as  a 
qualification  for  any  office  of  profit  or  trust  in  this  State,  other  than  a 
declaration  of  belief  in  the  existence  of  God;  nor  shall  the  Legislature 
prescribe  any  other  oath  of  office  than  the  oath  prescribed  by  this  Con- 
stitution.' Or  like  that  in  Articles  II  and  III,  of  Part  1st,  of  the  Consti- 
tution vi  Massachusetts,  1780:  'It  is  the  right  as  well  as  the  duty  of  all 
men  in  society  publicly  and  at  stated  seasons,  to  worship  the  Supreme 
Being,  the  Great  Creator  and  Preserver  of  tlie  universe.  .  .  .  As 
the  happiness  of  a  people  and  the  good  order  and  preservation  of  civil 
government  essentially  depend  upon  piety,  religion,  and  morality, 
and  as  these  cannot  be  generally  diffused  through  a  community  but  by 
the  institution  of  the  pub  lie  worship  of  God  and  of  public  instructions 
in  piety,  religion,  and  morality;  Therefore,  to  promote  their  happiness 
and  to  secure  the  good  order  and  p reservation  of  their  government,  the 
people  of  this  commonwealth  have  a  right  to  invest  their  Legislature 
with  power  to  authorize  and  require,  and  the  Legislature  shall,  from 
time  to  time,  authorize  and  require,  the  several  towns,  parishes,  pre- 
cincts, and  other  bodies-politic  or  religious  societies  to  make  suitable 
provisions,  at  their  own  expense,  for  the  institution  of  the  public  wor- 
ship of  God  and  for  the  support  and  maintenance  of  public  Protestant 
teachers  of  piety,  religion,  and  morality  in  all  cases  where  such  provi- 
sion shall  not  be  made  voluntarily.'  Or,  as  in  sections  5  and  14  of  Arti- 
cle VII  of  the  Constitution  of  Mississippi,  1832:  ' No  person  iu ho  denies 
the  being  of  a  God,  or  a  future  state  of  rewards  and  punishments,  shall 
hold  any  office  in  the  civil  department  of  this  State.  .  .  .  Religion, 
morality,  and  knowledge  being  necessary  to  good  government,  the 
preservation  of  liberty,  and  the  happiness  of  mankind,  schools,  and 
the  means  of  education,  shall  forever  be  encouraged  in  this  State.' 
Or  by  Article  XXII  of  the  Constitution  of  Delaware,  1776,  which  re- 
quired all  officers,  besides  an  oath  of  allegiance,  to  make  and  subscribe 
the  following  declaration:  'I,  A.  B.,  do  profess  faith  in  God  the  Father, 


RELIGIOUS    RIGHT    INVADED.  I2Q 

and  in  Jesus  Christ  his  only  Son,  and  in  the  Holy  Ghost,  one  God, 
blessed  forever  more;  and  I  do  acknowledge  the  Holy  Scriptures  oj 
the  Old  and  New  Testament  to  be  given  by  divine  inspiration.'  " 

And  the  doctrine  that  is  held  all  through  the  decision,  that 
these  things  and  the  Constitution  speak  the  same  language  and 
have  one  meaning,  is  just  at  this  point  emphasized  in  the  follow- 
ing words: — 

"Even  the  Constitution  of  the  United  States,  which  is  supposed  to 
have  little  touch  upon  the  private  life  of  the  individual,  contains  in  the 
first  amendment  a  declaration  common  to  the  constitutions  of  all  the 
States,  as  follows:  'Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise  thereof.'  And  also 
provides  that  the  executive  shall  have  ten  days  (Sundays  excepted), 
within  which  to  determine  wrhether  he  will  approve  or  veto  a  bill. 
[Here  is  a  sly  indication  that  the  enforcement  of  Sunday  observance 
is  constitutional.] 

"  There  is  no  dissonance  in  these  declarations.  There  is  a  univer- 
sal language  pervading  them  all,  having  one  meaning;  they  affirm  and 
reaffirm  that  this  is  a  religious  nation.  These  are  not  individual 
sayings,  declarations  of  private  persons;  they  are  organic  utterances; 
they  speak  the  voice  of  the  entire  people. ' ' 

According  to  this  interpretation,  then,  when  the  Consti- 
tution of  the  United  States  declares  that  ' '  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  or  public 
trust  under  the  United  States,"  it  means  that  "no  religious 
test  ought  ever  to  be  required  .  ,  .  other  than  a  belief 
in  the  existence  of  God, ' '  and  of  '  'a  future  state  of  rewards  and 
punishments, ' '  and  a  profession  of  ' '  faith  in  God  the  Father, 
and  in  Jesus  Christ  his  only  Son,  and  in  the  Holy  Ghost,  one 
God,  blessed  forevermore;  and  I  do  acknowledge  the  Holy 
Scriptures  of  the  Old  and  New  Testament  to  be  given  by 
divine  inspiration." (!!)  For  this  is  what  the  Constitutions  of 
Maryland,  Mississippi,  and  Delaware  plainly  mean;  and  these 
and  the  Constitution  of  the  United  States  are  pervaded  by  a 
' '  universal  language, "  * '  having  one  meaning. "(!!!) 


130  THE    RIGHTS    OF   THE   PEOPLE. 

And  when  the  Constitution  of  the  United  States  declares 
that  "Congress  shall  make  no  law  respecting  an  establishment 
of  religion,"  it  means  that  the  Congress  "shall,  from  time  to 
time,  authorize  and  require  the  several  towns,  parishes,  pre- 
cincts, and  other  bodies  politic,  or  religious  societies,  to  make 
suitable  provisions,  at  their  own  expense,  for  the  institution  of 
the  public  worship  of  God,  and  for  the  support  and  mainte- 
nance of  public  Protestant  teachers  of  piety,  religion,  and 
morality,  in  all  cases  where  such  provisions  shall  not  be  made 
voluntarily. "  !  !  For  plainly  that  is  what  the  Constitution  of 
Massachusetts  means,  and  behold  that  and  the  Constitution  of 
the  United  States  are  pervaded  by  '  'a  universal  language ' ' 
"having one  meaning. "(!  !  !) 

How  the  court  could  present  such  a  string  of  quotations, 
every  one  of  which  distinctly  contemplated  an  establishment 
of  religion  and  the  prohibition  of  the  free  exercise  thereof,  and 
then  quote  this  clause  of  the  national  Constitution,  which  in 
every  feature  and  every  intent  absolutely  prohibits  any  estab- 
lishment of  religion,  and  any  interference  with  the  free  exercise 
thereof — how  the  court  could  do  all  this  and  then  declare  that 
' '  there  is  no  dissonance ' '  in  the  declarations,  that  they  all 
have  the  same  language  and  "one  meaning,"  is  a  most  aston- 
ishing thing.  If  such  a  thing  had  been  done  by  any  of  the 
"common  run"  of  American  citizens,  it  could  have  been  con- 
sidered as  nothing  less  than  wildly  absurd;  but  coming  as  it 
does  from  such  a  source  as  the  Supreme  Court  of  the  whole 
nation,  it  is  as  far  worse  as  could  be  possible.  To  say  that  it 
is  absurd  is  not  enough,  it  is  simply  preposterous.  And  yet, 
preposterous  as  it  is,  it  is  expected  to,  and,  so  far  as  the  great 
mass  of  the  people  are  concerned,  it  undoubtedly  will,  carry 
with  it  all  the  weight  of  supreme  national  law. 

All  this  is  bad  enough,  and  preposterous  enough,  in  itself; 
but  there  is  another  consideration  that  even  magnifies  it,  that 
is,  the  leaving  out,  the  complete  ignoring,  of  all  of  the  history 


RELIGIOUS    RIGHT    INVADED.  131 

and  all  the  essential  facts  which  are  pertinent  to  the  question. 
Why  should  the  court  leave  out  Jefferson,  Madison,  and  Wash- 
ington from  the  place  where  they  only  and  wholly  belong,  and 
drag  Ferdinand,  Isabella,  and  Elizabeth  into  the  place  where 
they  do  not  and  cannot  by  any  shadow  of  right  belong  ?  Why 
should  Jefferson,  Madison,  and  Washington  not  only  be  allowed 
no  place  by  the  court,  but  be  compelled  by  the  court  to  give 
place  to  Ferdinand,  Isabella,  and  Elizabeth  ? 

Why  should  the  purposes  of  Jefferson,  Madison,  and  Wash- 
ington, and  the  other  fathers  who  made  this  nation,  be  com- 
pletely ignored,  and  the  purposes  of  Ferdinand,  Isabella,  Eliza- 
beth, and  the  Puritans  be  taken  up  an#  exalted  to  their  place  ? 
Why  should  all  the  history  of  the  making  of  the  national  Con- 
stitution be  ignored  as  completely  as  though  there  were  no 
such  history,  and  all  this  other  stuff  be  taken  up  and  discussed 
and  approved  as  though  this  were  the  only  historical  evidence 
there  is  on  the  subject  ? 

Why  should  the  national  Constitution  be  interpreted  and 
construed  according  to  the  purposes  of  Ferdinand,  Isabella, 
Elizabeth  and  her  successors,  the  Puritans,  and  the  consti- 
tutions of  the  States,  instead  of  the  purposes  of  Jefferson, 
Madison,  Washington,  and  the  other  fathers  who  made  it? 
Why  should  the  real  meaning  which  our  fathers  gave  to  the 
Constitution  be  supplanted  with  a  meaning  that  is  as  foreign 
to  it  as  the  sovereigns  of  Spain  and  England  are  foreign  to  the 
nation  itself  to-day?  Why  should  the  only  history  that  is 
pertinent  to  the  question  be  wholly  ignored,  and  that  which  in 
every  element  is  absolutely  impertinent  be  exalted  and  hon- 
ored in  its  stead?9 

The  language  in  which  Abraham  Lincoln  characterized  the 
position  of  Chief  Justice  Taney  in  the  Dred  Scott  decision,  and 


9  The  reader  will  readily  perceive  that  not  a  vestige  of  the  history  which  is  given  in 
the  preceding  chapters  of  this  work,  which  is  simply  the  history  of  the  Constitution — 
not  a  vestige  of  it  is  noticed  by  the  court. 
9 


132  THE    RIGHTS    OF    THE    PEOPLE. 

of  Stephen  A.  Douglas  in  the  defense  of  it,  is  the  language 
that  is  most  fitting  to  the  position  of  the  Supreme  Court  in 
this  "Christian  nation"  decision;  for  here  the  two  decisions 
are  perfectly  parallel.  Lincoln's  words  are  as  follows: — 

"  I  a^k,  How  extraordinary  a  thing  it  is  that  a  man  who  has  occu- 
pied a  seat  on  the  floor  of  the  Senate  [or  on  the  bench  of  the  Supreme 
Court — A.  T.  j.]  of  the  United  States  .  .  .  pretending  to  give 
a  truthful  and  accurate  history  of  the  slavery  question  [or  of  the  ques- 
tion of  religion  and  the  nation— A.  T.  j.]  in  this  country,  should  so 
entirely  ignore  the  whole  of  that  portion  of  our  history— the  most 
important  of  all !  Is  it  not  a  most  extraordinary  spectacle  that  a  man 
should  stand  up  and  ask  for  any  confidence  in  his  statements  who 
sets  out  as  he  does  with  portions  of  history,  calling  upon  the  people 
to  believe  that  it  is  a  true  and  fair  representation,  when  the  leading 
part,  the  controlling  feature,  of  the  whole  history  is  carefully  sup- 
pressed ? 

"And  now  he  asks  the  community  to  believe  that  the  men  of  the 
Revolution  were  in  favor  of  his  'great  principle,'  when  we  have  the 
naked  history  that  they  themselves  dealt  with  this  very  subject  matter 
of  his  principle,  and  utterly  repudiated  his  principle — acting  upon  a 
precisely  contrary  ground.  It  is  as  impudent  and  absurd  as  if  a  prose- 
cuting attorney  should  stand  up  before  a  jury,  and  ask  them  to  convict 
A  as  the  murderer  of  B  while  B  was  standing  alive  before  them." 

But  the  court  does  not  stop  even  here.  Having  estab- 
lished "the  Christian  religion"  for  "the  entire  people,"  and 
settled  all  the  appurtenances  thereto  as  within  the  meaning  of 
the  Constitution,  the  court  cites  and  sanctions  the  declaration 
of  the  Supreme  Court  of  Pennsylvania  that  "Christianity,  gen- 
eral Christianity,  is,  and  always  has  been,  part  of  the  common 
law,"  and  then  proceeds  to  sanction  also  the  doctrine  that  it 
is  blasphemy  to  speak  or  act  in  contempt  "of  the  religion  pro- 
fessed by  almost  the  whole  community."  This  is  done  by 
citing  the  pagan  decision  of  "Chancellor  Kent,  the  great  com- 
mentator on  American  law,  speaking  as  chief  justice  of  the 
Supreme  Court  of  New  York, ' '  which  '  'assumes  that  we  are 
a  Christian  people."  Here  is  the  language  of  the  court  on  that 
strain: — 


RELIGIOUS    RIGHT   INVADED.  133 

"While  because  of  the  general  recognition  of  this  truth  the  ques- 
tion has  seldom  been  presented  to  the  courts,  yet  we  find  that  in  Up- 
degraph  versus  The  Commonwealth  (n  Serg.  and  Rawle,  394,  400) 
it  was  decided  that  'Christianity,  general  Christianity,  is,  and  always 
has  been,  apart  of  the  common  law  of  Pennsylvania;  .  .  .  not 
Christianity  with  an  established  church,  and  tithes,  and  spiritual 
courts,  but  Christianity  with  liberty  of  conscience  to  all  men.'  And 
in  The  People  versus  Ruggles  (8  Johns.  290,  294,  295),  Chancellor  Kent, 
the  great  commentator  on  American  law,  speaking  as  chief  justice  of 
the  Supreme  Court  of  New  York,  said:  'The  people  of  this  State,  in 
common  with  the  people  of  this  country,  profess  the  general  doctrines 
of  Christianity,  as  the  rule  of  their  faith  and  practice;  and  to  scandal- 
ize the  Author  of  these  doctrines  is  not  only,  in  a  religious  point  of 
view,  extremely  impious,  but,  even  in  respect  to  the  obligations  due 
to  society,  is  a  gross  violation  of  decency  and  good  order.  .  .  . 
The  free,  equal,  and  undisturbed  enjoyment  of  religious  opinion, 
whatever  it  may  be,  and  free  and  decent  discussions  on  any  religious 
subject,  is  granted  and  secured;  but  to  revile  with  malicious  and  blas- 
phemous contempt,  the  religion  professed  by  almost  the  whole  Com- 
munity, is  an  abuse  of  that  right.  Nor  are  we  bound,  by  any  expres- 
sions in  the  Constitution,  as  some  have  strangely  supposed,  either 
not  to  punish  at  all,  or  to  punish 'indiscriminately,  the  like  attacks 
upon  the  religion  of  Mahomet  or  of  the  Grand  Lama;  and  for  this 
plain  reason,  that  the  case  assumes  that  we  are  a  Christian  people,  and 
the  morality  of  the  country  is  deeply  ingrafted  upon  Christianity,  and 
not  upon  the  doctrines  or  worship  of  those  impostors.'  And  in  the 
famous  case  of  Vidal  versus  Girard's  Executors  (2  How.  127, 128),  this 
court,  while  sustaining  the  will  of  Mr.  Girard,  with  its  provision  for  the 
creation  of  a  college  into  which  no  minister  should  be  permitted  to 
enter,  observed,  '  It  is  also  said,  and  truly,  that  the  Christian  religion 
is  a  part  of  the  common  law  of  Pennsylvania'  " 

But  even  though  it  be  decided,  and  declared,  and  admitted, 
that  "Christianity,  general  Christianity,  is  and  always  has 
been' '  not  only  a  part  but  the  whole  of  the  common  law,  and 
the  statute  law  also,  of  Pennsylvania ,  and  that  it  is  "blas- 
phemy" in  New  York  to  speak  or  act  in  contempt  of  the  estab- 
lished religion,  that  never  can  rightly  be  made  to  mean  any- 
thing to  the  nation.  And  even  though  all  this  were  a  fact 
within  the  legitimate  consideration  of  the  Supreme  Courts  of 


134  THE    RIGHTS    OF    THE    PEOPLE. 

Pennsylvania,  New  York,  and  all  the  other  State  Supreme 
Courts  in  the  land,  it  never  could  by  any  kind  of  right  be  a 
fact  within  the  legitimate  consideration  of  the  Supreme  Court 
of  the  nation  in  the  construction  of  any  national  law  or  the 
decision  of  any  national  question.  10 

There  remains  but  one  thing  more  to  cover  the  whole 
ground  of  the  old  order  of  things,  but  one  thing  more  to  com- 
plete the  perfect  likeness  of  the  whole  papal  system,  and  that  is 
the  direct  and  positive  sanction  of  Sunday  laws.  Nor  is  this  one 
thing  lacking.  As  before  observed,  it  is  indirectly  indicated 
in  the  quotation  from  the  national  Constitution.  But  the  court 
does  not  stop  with  that;  it  makes  Sunday  laws  one  of  the 
proofs  that  ' '  this  is  a  Christian  nation. ' '  The  words  are  as 
follows : — 

"If  we  pass  beyond  these  matters  to  a  view  of  American  life  as 
expressed  by  its  laws,  its  business,  its  customs,  and  its  society,  we 
find  everywhere  a  clear  recognition  of  the  same  truth.  Among  other 
matters,  note  the  following:  The  form  of  oath  usually  prevailing,  con- 
cluding with  an  appeal  to  the  Almighty;  the  custom  of  opening  ses- 
sions of  all  deliberative  bodies,  and  most  conventions,  with  prayer; 
the  prefatory  words  of  all  wills,  'In  the  name  of  God,  Amen;'  the 
laws  respecting  the  observance  of  the  Sabbath  with  the  general  cessa- 
tion of  all  secular  business,  and  the  closing  of  courts,  Legislatures, 
and  other  similar  public  assemblies  on  that 'day.  .  .  .  These,  and 
many  other  matters  which  might  be  noticed,  add  a  volume  of  unoffi- 
cial declarations  to  the  mass  of  organic  utterances  that  THIS  is  A 
CHRISTIAN  NATION."  , 

Here  we  may  properly  present  in  summary  form  again  this 
whole  discussion  as  presented  by  the  Court.  So  stated  it 
stands  thus:— 

(a)  '  'The  establishment  of  the  Christian  religion, "  "Chris- 
tianity, general  Christianity,"  "is  one  of  the  purposes  of  all 
these"  documents. 

(U)   ' '  Even  the  Constitution  of  the  United  States     .     .     . 


'"Think  again  on  chapter  3. 


RELIGIOUS    RIGHT    INVADED.  135 

contains  in  the  first  amendment  a  declaration  common  to"  all 
these;  for  "  there  is  a  universal  language  pervading  them  all, 
having  one  meaning;  they  affirm  and  reaffirm  that  this  is  a 
religious  nation.  .  .  .  They  are  organic  utterances;  they 
speak  the  voice  of  the  entire  people." 

(f)  Conclusion :    ' '  This  is  a  Christian  nation. ' ' 
And  therefore  the  decision  concludes  as  follows: — 

"The  construction  ["of  this  statute"]  invoked  cannot  be  accepted 
as  correct.  It  is  a  case  where  there  was  presented  a  definite  evil,  in 
view  of  which  the  Legislature  used  general  terms  with  the  purpose  of 
reaching  all  phases  of  that  evil,  and  thereafter,  unexpectedly,  it  is 
developed  that  the  general  language  thus  employed  is  broad  enough 
to  reach  cases  and  acts  which  the  whole  history  and  life  of  the  country 
affirm  could  not  have  been  intentionally  legislated  against.  It  is  the 
duty  of  the  courts,  under  those  circumstances,  to  say  that,  however 
broad  the  language  of  the  statute  may  be,  the  act,  although  within 
the  letter,  is  not  within  the  intention  of  the  Legislature,  and  therefore 
cannot  be  within  the  statute. 

"The  judgment  will  be  reversed,  and  the  case  remanded  for  fur- 
ther proceedings  in  accordance  with  this  opinion." 

' '  In  accordance  with  this  opinion' '  then,  let  us  recapitulate, 
and  see  what  has  been  done  by  it.  "The  Christian  religion," 
that  is,  "Christianity,  general  Christianity,"  is  legally  recog- 
nized and  declared  to  be  the  established  religion  of  this  nation, 
and  that  consequently  ' '  this  is  a  Christian  nation. ' '  With 
this  also,  '  'in  language  more  or  less  emphatic, ' '  there  is  justi- 
fied as  the  '  'meaning  of  the  Constitution  of  the  United  States, 
(i)  the  maintenance  of  the  discipline  of  the  churches  by  the 
civil  power;  (2)  the  requirement  of  the  religious  oath;  (3)  the 
requirement  of  the  religious  test  oath  as  a  qualification  for 
office;  (4)  public  taxation  for  the  support  of  religion  and  reli- 
gious teachers;  (5)  the  requirement  of  a  belief  in  the  Trinity  and 
the  inspiration  of  ' ( the  Holy  Scriptures  of  the  Old  and  New 
Testaments;"  (6)  the  guilt  of  blasphemy  upon  everyone  who 
speaks  or  acts  in  contempt  of  the  established  religion;  and  (7) 


136  THE    RIGHTS    OF   THE    PEOPLE. 

laws  for  the  observance  of  Sunday,  with  the  general  cessation 
of  all  "secular  business." 

All  this  is  declared  by  unanimous  decision  of  the  Supreme 
Court  of  the  United  States  to  be  the  meaning  of  the  Constitu- 
tion of  the  United  States.  And  what  the  Supreme  Court  says 
the  meaning  of  the  Constitution  is,  that  is  its  meaning  and  that 
is  the  law  until  the  decision  is  reversed.  Therefore,  again,  we 
say,  and  it  is  not  too  much  to  say,  as  certainly  as  logic  is  logic, 
and  truth  is  truth,  it  is  demonstrated  that  in  this  decision  the 
Supreme  Court  of  the  United  States  has  subverted  the  Con- 
stitution of  the  United  States  in  its  essential  meaning  as  regards 
the  Christian  religion  or  the  establishment  thereof. 

Now  what  more  was  ever  required  by  the  Papacy,  and  all 
phases  of  the  old  order  of  things,  than  is  thus  brought  within 
the  meaning  of  the  national  Constitution  by  this  decision? 
What  more  was  ever  required  by  the  Papacy  itself  than  that 
"the  Christian  religion"  should  be  the  national  religion;  that 
the  discipline  of  the  church  should  be  maintained  by  the  civil 
power;  that  the  religious  test  oath  should  be  applied  to  all; 
that  the  public  should  be  taxed  for  the  support  of  religion  and 
religious  worship;  that  there  should  be  required  a  belief  in  the 
doctrine  of  the  Trinity,  and  the  inspiration  of  the  "Holy  Scrip- 
tures of  the  Old  and  New  Testament;"  that  the  guilt  of  "blas- 
phemy' '  should  be  visited  upon  everyone  who  should  speak  or 
act  ' '  in  contempt  of  the  religion  professed  by  almost  the  whole 
community;"  and  that  everybody  should  be  required  by  law  to 
observe  Sunday  ?  Indeed,  what  more  than  this  could  be  required 
or  even  desired  by  the  most  absolute  religious  despotism  that 
could  be  imagined  ? 

Therefore,  it  is  pertinent  here  to  inquire,  Does  this  decision 
maintain  the  '  'new  order  of  things' '  to  which  this  nation  stands 
pledged  by  the  great  seal  of  the  United  States? — No,  no, 
twenty  times  no.  On  the  contrary,  it  sanctions,  and  restores, 
and  fastens  upon  this  nation,  the  old  order  of  things  which  our 


RELIGIOUS   RIGHT   INVADED.  137 

revolutionary  fathers  hoped  that  we  should  forever  escape, 
through  their  sublime  efforts,  which  culminated  in  the  creation 
of  this  nation  and  the  formation  of  the  national  Constitution — 
as  it  reads,  and  as  they  meant  it. 

What  more  could  be  done  to  create  the  very  image  of  the 
Papacy  in  this  nation,  in  the  principle  of  the  thing,  than  is 
done  in  this  decision?  In  principle  we  say;  not  in  its  positive 
workings,  of  course,  because  the  decision  in  itself  on  this  point 
does  not  bear  the  force  of  a  statute  that  can  be  made  at  once 
obligatory  upon  all  by  the  executive  power  of  the  nation.  But 
it  does  sanction  and  justify  beforehand  any  and  every  encroach- 
ment that  the  religious  power  may  make  upon  the  civil,  and 
every  piece  of  legislation  that  Congress  might  enact  on  the 
subject  of  religion  or  religious  observances;  so  that  by  it  the 
national  door  is  opened  wide  for  the  religious  element  to  enter 
and  take  possession  in  whatever  way  it  chooses  or  can  make 
effective.  And  there  stands  at  the  door,  ready  and  determined 
to  enter  and  take  possession,  the  strongest  religio-political  com- 
bination that  could  be  formed  in  the  land. 

Therefore  we  say  that,  although  life  is  not  by  this  given  to 
this  image  that  it  should  of  itself  speak  and  act  (Rev.  13:  15), 
yet  so  far  as  the  making  of  the  evil  thing,  and  the  establish- 
ment of  the  principle  of  it  are  concerned,  it  is  certainly  done. 
The  tree  does  not  yet  stand  with  its  branches  widespread,  bear- 
ing its  pernicious  fruit,  but  the  tree  is  planted.  And  as  cer- 
tainly as  the  branches  and  the  fruit  are  all  in  the  natural  stock 
that  is  planted,  and  it  is  only  a  question  of  time  when  they  will 
appear,  so  certainly  the  widespreading  branches  and  the  per- 
nicious fruit  of  the  full-grown  tree  of  religious  despotism  are  in 
the  evil  stock  of  Church  and  State,  of  ' '  the  establishment  of 
the  Christian  religion,"  that  has  been  planted  by  the  Supreme 
Court  in  and  for  this  nation;  and  it  is  only  a  question  of  time 
when  these  fruits  will  inevitably  appear. 

This  decision  was  followed  in  the  same  year,  1892,  by  an 


138  THE    RIGHTS    OF    THE    PEOPLE. 

act  of  Congress  declaring  Sunday  to  be  the  Sabbath  of  the 
fourth  commandment,  instead  of  the  seventh  day,  as  named  in 
the  commandment,  and  requiring  its  observance  at  the  World's 
Columbian  Exposition.  Congress  did  this  specifically  as  a 
religious  thing.  And,  although  other  things  defeated  the  actual 
closing  of  the  gates,  defeated  the  enforcement  of  the  law,  yet 
that  in  nowise  weakens  the  fact  that  this  law  respecting  religion 
was  enacted  by  Congress. 

And  the  president,  Benjamin  Harrison,  approved  this  law 
respecting  religion.  This  he  did  under  the  mistaken  notion 
that  he  was  pledged  to  maintain  the  government  of  the  United 
States,  rather  than  the  Constitution  of  the  United  States.11 

Thus  in  the  year  A.  n.  1892  the  government  of  the  United 
States,  by  specific  official  acts  of  the  three  departments — the 
Judiciary,  the  Legislative,  and  the  Executive — of  which  that 
government  is  composed,  was  turned  from  the  '  'new  order  of 
things' '  to  which  it  was  committed  by  our  revolutionary  fathers, 
and  to  which  it  stands  pledged  by  the  great  seal  of  the  govern- 
ment itself,  and  was  thrown  into  the  evil  tide  of  the  old  order 
of  things.  And  thus  this  enlightened  nation,  the  example  and 
glory  of  the  world,  was  caused  to  assume  the  place  and  the 
prerogatives  of  the  governments  of  the  Middle  Ages  in  embody  - 


11  This  is  a  fact.  In  a  personal  interview  with  the  autnor  of  this  book,  the  reason  (?) 
and  the  only  reason  which  he  gave  for  approving  this  legislation,  was  that  it  was  "part 
of  the  general  appropriation  bill  for  the  running  expenses  of  the  government;  that  to 
disapprove  this  he  would  have  to  disapprove  the  whole  bill;  and  if  that  were  done,  all 
the  machinery  of  the  government  would  have  to  stop,  and  the  whole  government  itself 
be  brought  to  a  standstill."  This,  too,  while  admitting  that  if  this  Sunday  legislation 
had  come  before  him  separated  from  other  legislation,  so  that  it  might  be  considered 
upon  its  merits  alone,  the  result  might  be  different.  This  was  nothing  else  than  to 
argue  that  he  was  responsible  for  the  maintenance  of  the  government.  But  this  was 
altogether  a  mistake.  The  maintenance  of  the  government  devolves  altogether  upon 
Congress.  And  if  the  President  were  to  veto  a  general  appropriation  bill  because  of 
an  unconstitutional  piece  of  legislation  which  had  been  tacked  to  it;  and  if  the  whole 
government  should  in  consequence  be  brought  indeed  to  a  standstill;  he  would  be  no 
more  responsible  for  it  than  would  any  private  citizen.  President  Harrison's  assump- 
tion, therefore,  was  altogether  a  mistaken  one,  and  this  plea  wholly  irrelevant. 


RELIGIOUS    RIGHT    INVADED.  139 

ing  in  law  the  dogmas  and  definitions  of  the  theologians,  and 
executing  the  arbitrary  and  despotic  will  of  the  church. 

As  the  acts  of  Congress  and  the  executive  must  in  any 
case  rest  for  their  validity  upon  their  constitutionality;  as  their 
constitutionality  or  otherwise  must,  so  far  as  the  action  of  the 
government  is  concerned,  rest  upon  a  decision  of  the  Supreme 
Court;  and  as  the  court  in  this  Christian  nation  decision  has 
already  practically  decided  beforehand  every  such  question; 
this  makes  this  decision  the  pivot  of  the  whole  question  of 
an  established  national  religion,  as  against  the  perfect  freedom 
of  religious  right  as  the  meaning  of  the  Constitution  and  the 
right  of  mankind. 

For  this  reason  we  confine  ourselves  to  the  discussion  of 
the  decision  and  the  principles  involved. 


NOTE. — For  a  full  history  and  discussion  of  the  Act  of  Congress  above  referred  to, 
see  "Two  Republics,"  pp.  801-826. 


CHAPTER    VII. 
THE  PEOPLE'S  RIGHT  OF  APPEAL. 

IN  their  opposition  to  the  establishment  of. "  Christianity, 
general  Christianity, ' '  in  Virginia,  and  to  the  making  of  that  a 
"Christian  State,"  James  Madison  and  the  good  people  of  Vir- 
ginia declared  that  *  'one  of  the  noblest  characteristics  of  the 
[then]  late  Revolution"  was  in  the  fact  that  "the  freemen 
of  America  did  not  wait  till  usurped  power  had  strengthened 
itself  by  exercise,  and  entangled  itself  in  precedents.  They 
saw  all  the  consequences  in  the  principle,  and  they  avoided  the 
consequences  by  denying  the  principle. ' '  They  also  said  that 
they  themselves  '  'revered  this  lesson  too  much  soon  to  forget 
it. ' '  The  American  people  ought  yet  to  revere  this  lesson  too 
much  ever  to  forget  it. 

In  the  matter  of  a  national  religion,  a  religious  despotism,  by 
means  of  this  "Christian  nation"  decision,  it  is  too  late  to 
avoid  the  consequences  by  denying  the  principle;  because  the 
principle  is  already  established.  The  people  were  given  no 
opportunity  to  deny  the  principle.  It  was  sprung  upon  them 
without  their  knowledge,  and  in  spite  of  the  constitutional 
barriers  which  they  had  set  up  in,  as  they  supposed,  eternal 
denial  of  the  principle.  For  this  reason  it  is  too  late  to  escape 
the  consequences  by  denying  the  principle;  but  it  is  not  too  late 
to  escape  the  consequences  by  reversing  the  decision. 

It  is  not  too  late  for  this  if  only  the  people  will  think  enough 
upon  the  question  to  see  that  all  the  consequences  are  in  the 
principle;  and  that  these  consequences  will  certainly  follow  if 
(140) 


THE  PEOPLE'S  RIGHT  OF  APPEAL.  141 

the  principle  is  left  undisputed,  if  the  decision  is  left  standing 
as  the  meaning-  of  the  Constitution.  It  is  not  too  late,  if  only 
the  people  will  see  this,  and  awake  to  the  reality  of  the  issue, 
and  reverse  the  decision;  and  with  one  voice  repudiate  it,  even 
in  the  words  in  which  United  States  Senator  William  Pitt  Fes- 
senden  denounced  the  famous  Dred  Scott  decision,  as  "utterly 
at  variance  with  all  truth,  utterly  destitute  of  all  legal  logic, 
founded  on  error,  and  unsupported  by  anything  resembling 
argument. ' ' l 

For  "the  people  of  these  United  States  are  the  rightful 
masters  of  both  congresses  and  courts,  not  to  overthrow  the 
Constitution,  but  to  overthrow  the  men  who  pervert  the  Con- 
stitution. ' '  — Abraham  Lincoln. 2 

The  right  OF  THE  PEOPLE  of  the  United  States  TO  APPEAL 
from  any  decision  of  the  Supreme  Court  of  the  United  States, 
upon  any  constitutional  question,  upon  any  question  involving 
the  meaning  or  the  interpretation  of  the  Constitution,  is  AN 

INALIENABLE  RIGHT. 

This  proposition  will  probably  be  disputed  by  many  judges, 
by  many  lawyers,  and  certainly  by  almost  all  the  archbishops; 
bishops,  preachers,  and  priests  throughout  the  land;  while  the 
great  majority  of  the  people  will  doubtless  be  surprised  at  it, 
and  wonder  whether  it  is  true.  Yet  it  is  not  only  the  veritable 
truth,  but  it  is  the  very  life  principle  of  a  free  government — 
which  is  only  saying  that  it  is  the  life  principle  of  the  govern- 
ment of  the  United  States  as  a  free  government. 

The  inalienable  right  of  the  people  to  appeal  from,  to  sit 
in  judgment  upon,  and  to  correct,  any  action  of  the  President 
or  the  Congress  of  the  United  States,  is  recognized  and  acted 


1  Elaine's  "Twenty  Years  of  Congress,"  Vol.  I,  p.  133. 

2  Speech  "To  the   Kentuckians,"   Cincinnati,  Ohio,  September,  1869.    ''Political 
Speeches  and  Debates,"  p.  507.    I  give  these  double  references  so  that  anyone  who  has 
any  copy  of  Lincoln's  speeches  may  readily  find  the  passage.    The  copy  that  I  use  is 
the  one  advertised  at  the  end  of  this  book. 


142  THE    RIGHTS     OF    THE    PEOPLE. 

upon  by  the  people.  But  the  right  of  the  people  to  do  like- 
wise respecting  the  decisions  of  the  Supreme  Court  touching 
constitutional  questions,  has  been  largely  forgotten.  And  there 
is  a  vast  combination  in  the  United  States  scheming  against 
the  liberties  of  the  people,  whose  members  sincerely  desire  that 
this  right  shall  be  forgotten  by  the  people  in  its  exercise  and  in 
its  existence.  For  this  reason,  if  for  no  other,  the  knowledge 
of  this  right  of  the  people  needs  to  be  revived  as  fully  as 
possible. 

The  government  of  the  United  States,  and,  therefore,  the 
Supreme  Court  as  a  coordinate  branch  of  the  government,  is 
not  self-existent;  it  was  created.  It  did  not  spontaneously 
spring  into  existence  of  itself  full  formed;  in  all  its  parts  it  was 
made,  as  certainly  as  any  other  piece  of  machinery  was  ever 
made.  It  was  created  by  the  people  of  the  United  States;  and, 
like  any  other  creature,  it  is  the  subject  not  the  master  of  its 
creator.  "We,  the  people  of  the  United  States,"  made  the 
government  of  the  United-  States,  and  in  that  made  the  Su- 
preme Court  of  the  United  States  as  a  coordinate  branch 
thereof;  and  "we,  the  people  of  the  United  States,"  therefore 
by  this  very  fact  are  "the  rightful  masters,"  and  not  the  serv- 
ants of  this  thing  which  they  have  made;  and  as  such  the  peo- 
ple have  the  inalienable  right  to  sit  in  final  judgment  upon  any 
act  of  the  government  of  the  United  States. 

1  'We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,"  in  order  to  form  that  which  is  the  gov- 
ernment of  the  United  States,  ordained  and  established  '  'this 
Constitution."  This  Constitution  is  the  charter  of  the  nation's 
existence.  This  Constitution  is  the  sole  depository  of  all  the 
authority  of  the  government  of  the  United  States  in  all  three 
of  the  coordinate  branches  thereof.  This  Constitution,  there- 
fore, is  the  sole  depository  of  all  the  authority  of  the  Supreme 
Court,  and  of  all  the  authority  that  that  court  can  ever  rightly 
exercise.  To  this  Constitution  that  court  owes  its  existence, 


THE     PEOPLES     RIGHT     OF     APPEAL.  143 

and  all  the  accompaniments  of  that  existence.  And  as  "we, 
the  people, ' '  established  and  ordained  this  Constitution  which 
gives  to  the  court  its  very  existence  and  all  the  authority  that 
it  ever  can  rightly  have,  it  follows  that  "we,  the  people,"  have 
ever  the  inalienable  right  of  final  judgment  and  correction  of 
any  and  every  decision  of  that  court  touching  any  question  as 
to  the  meaning  of  the  Constitution  which  "we,  the  people," 
have  ordained  and  established. 

The  authority  of  the  Supreme  Court  is  delegated  and  not 
absolute.  Decisions  of  the  Supreme  Court,  therefore,  are  not 
final  in  all  things,  because  the  people  have  not  delegated  all 
their  rights.  In  the  Constitution  the  people  have  declared  and 
established  that — 

"The  enumeration  in  the  Constitution  of  certain  rights  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people."* 

Again:  The  Supreme  Court,  being  but  a  creature  of  the 
Constitution,  must  be  subject  to  the  Constitution.  Having  been 
created  by  the  people,  through  the  Constitution,  it  is  bound  by 
the  limitations  prescribed  by  the  people  in  the  Constitution. 
In  the  Constitution  the  people  have  declared  that — 

"The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people.'"  * 

As  the  people  made  the  Constitution  with  the  delegation 
only  of  certain  rights  to  be  exercised  by  the  government,  it 
follows  conclusively  that  the  people  are  the  supreme  authority 
in  the  United  States,  and  the  source  of  final  appeal  in  all  ques- 
tions of  their  reserved  rights.  And  "prudent  jealousy "  in 
the  guardianship  of  these  rights  against  encroachment  on  the 
part  of  the  government  or  any  of  the  branches  thereof  is  the 
first  duty  of  the  people  of  the  United  States;  and  religious 
right  is  the  chief  of  all  these  reserved  rights  no  less  than  the 

3  Ninth  amendment.  *  Tenth  amendment. 


144  THE    RIGHTS    OF    THE    PEOPLE. 

chief  of  all  natural  rights.  ' '  I  insist  that  if  there  is  anything 
which  it  is  the  duty  of  the  whole  people  to  never  intrust  to  any 
hands  but  their  own,  that  thing  is  the  preservation  and  perpe- 
tuity of  their  own  liberties  and  institutions." — Abraham  Lin- 
coln? 

This  is  sufficient  as  to  the  principle  in  the  abstract,  as  the 
principle  inheres  in  the  very  nature  of  a  limited  constitution. 
Yet,  as  with  many  persons  the  statement  of  a  principle,  how- 
ever clear,  is  insufficient  without  proof  from  authorities,  we 
shall  now  cite  the  very  best  authorities  as  to  the  correctness  of 
the  principle. 

First,  we  have  the  authority  of  one  of  the  makers  of  the 
Constitution : — 

"  It  must  be  granted  that  a  bad  administration  may  take  place. 
What  is  then  to  be  done? — The  answer  is  instantly  found:  Let  the 
Fasces  be  lowered  before — the  supreme  sovereignty  of  the  people. 
It  is  their  duty  to  watch,  and  their  right  to  take  care,  that  the  Consti- 
tution be  preserved,  or,  in  the  Roman  phrase  on  perilous  occasions — 
to  provide  that  the  republic  receive  no  damage." 

''When  one  part  [of  the  government],  without  being  sufficiently 
checked  by  the  rest,  abuses  its  power  to  the  manifest  danger  of  public 
happiness;  or  when  the  several  parts  abuse  their  respective  powers  so 
as  to  involve  the  commonwealth  in  the  like  peril;  the  people  must 
restore  things  to  that  order  from  which  their  functionaries  have 
departed.  If  the  people  suffer  this  living  principle  of  watchfulness 
and  control  to  be  extinguished  among  them,  they  will  assuredly,  not 
long  afterwards,  experience  that  of  their  '  temple  '  '  there  shall  not  be 
left  one  stone  upon  another,  that  shall  not  be  thrown  down.'  " — John 
Dickinson,  pamphlet  on  The  Federal  Constitution,  1788  * 

Secondly,  we  have  the  authority  of  Thomas  Jefferson.  In 
1820  a  gentleman  by  the  name  of  Jan/is  sent  to  Jefferson  a 
book  that  he  had  written,  entitled  "The  Republican."  In  his 
acknowledgment  of  the  present,  Jefferson  called  the  author's 


6 Speech  on  The  Missouri  Compromise,  Peoria,  111.,  October  16,  1854,   "Political 
Speeches  and  Debates,"  p.  24. 

6  "  Federalist  and  Other  Constitutional  Papers,"  p.  796. 


THE  PEOPLE  S  RIGHT  OF  APPEAL,          145 

attention  to  "a  very  dangerous  doctrine ' '  that  seemed  to  be 
inculcated  in  the  book.  His  words  upon  the  point,  and  it  is 
the  very  point  which  is  here  under  consideration,  are  as  fol- 
lows:— 

"  You  seem,  in  pages  84  and  148,  to  consider  the  judges  as  the  ulti- 
mate arbiters  of  all  constitutional  questions, — a  very  dangerous  doc- 
trine indeed,  and  one  which  would  place  us  under  the  despotism  of  an 
oligarchy.  Our  judges  are  as  honest  as  other  men,  and  not  more  so. 
They  have,  with  others,  the  same  passions  for  party,  for  power,  and 
the  privilege  of  their  corps.  Their  maxim  is,  'Boni  judicis  est 
ampliare  jurisdictionem;  '  and  their  power  is  the  more  dangerous  as 
they  are  in  office  for  life,  and  are  not  responsible,  as  the  other  func- 
tionaries are,  to  the  elective  control.  The  Constitution  has  erected 
no  such  single  tribunal,  knowing  that,  to  whatever  hands  confided, 
with  the  corruptions  of  time  and  party,  its  members  would  become 
despots."  7 

Thirdly,  we  have  the  authority  of  Abraham  Lincoln. 
With  direct  reference  to  this  point  he  paraphrased  the  above 
statement  from  Jefferson  as  follows: — 

"Jefferson  said  that  'judges  are  as  honest  as  other  men,  and  not 
more  so. '  And  he  said,  substantially,  that '  whenever  a  free  people 
should  give  up  in  absolute  submission  to  any  department  of  govern- 
ment, retaining  for  themselves  no  appeal  from  it,  their  liberties  were 
gone.'"8 

Again:  In  his  first  inaugural  address,  March  4,  1861,  Lin- 
coln stated  the  case  as  follows: — 

"  I  do  not  forget  the. position  assumed  by  some,  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court;  nor  do  I  deny  that 
such  decisions  must  be  binding  in  any  case  upoa  the  parties  to  a  suit, 
as  to  the  object  of  that  suit,  while  they  are  also  entitled  to  a  very  high 
respect  and  consideration  in  all  parallel  cases  by  all  other  departments 
of  the  government;  and  while  it  is  obviously  possible  that  such  deci- 


7  "Jefferson's  Correspondence,"  Vol.  VII,  p.  177.    Quoted  also  by  Abraham  Lincoln 
in  his  speech  at  Springfield,  111.,  July  17,  1858,  "Political  Speeches  and  Debates,  "p.  43. 

8  Debate  with    Douglas,  Galesburg,  111.,  October  7,  1858,  "Political  Speeches  and 
Debates,"  p.  362. 


146  THE     RIGHTS     OF     THE     PEOPLE. 

sion  may  be  erroneous  in  any  given  case,  still  the  evil  effect  follow- 
ing it,  being  limited  to  that  particular  case,  with  the  chance  that  it 
may  be  overruled  and  never  become  a  precedent  for  other  cases,  can 
better  be  borne  than  could  the  evils  of  a  different  practice. 

"At  the  same  time  the  candid  citizen  must  confess  that,  if  the  pol- 
icy of  the  government  upon  vital  questions  affecting  the  whole 
people  is  to  be  irrevocably  fixed  by  the  decisions  of  the  Supreme 
Court  the  instant  they  are  made,  as  in  ordinary  litigation  between 
parties  in  personal  action,  the  people  ivill  have  ceased  to  be  their  own 
rulers— having  to  that  extent  practically  resigned  their  government 
into  the  hands  of  that  eminent  tribunal.  Nor  is  this  view  any  assault 
upon  the  court  or  the  judges." — Id., pp.  jjj,  536. 

Fourthly,  we  have  the  authority  of  George  Bancroft,  the 
historian  of  the  Constitution.  Mr.  Bancroft  wrote  the  standard 
and  authoritative  history  of  the  United  States  up  to  the  time  of 
the  making  of  the  Constitution,  and  then  wrote  the  ' '  History 
of  the  Formation  of  the  Constitution  ' '  itself.  And  in  this  lat- 
ter history,  in  discussing  "The  Federal  Judiciary,"  he  makes 
the  following  statement  concerning  the  Supreme  Court,  which 
is  also  only  an  extension  of  the  principles  laid  down  by  Alex- 
ander Hamilton  in  his  discussion  of  the  Judiciary  in  the  Fed- 
eralist, No.  LXXVIII. 

' '  The  Supreme  Court  was  to  be  the  '  bulwark  of  a  limited  consti- 
tution against  legislative  encroachments.'  ["Federalist,"  LXXVIII. ] 
A  bench  of  a  few,  selected  with  care  by  the  President  and  Senate  of 
the  nation,  seemed  a  safer  tribunal  than  a  multitudinous  assembly 
elected  for  a  short  period  under  the  sway  of  passing  currents  of 
thought,  or  the  intrepid  fixedness  of  an  uncompromising  party. 
There  always  remains  danger  of  erroneous  judgments,  arising  from 
mistakes,  imperfect  investigation,  the  bias  of  previous  connections, 
the  seductions  of  ambition,  or  the  instigations  of  surrounding  opin- 
ions, and  a  court  from  which  there  is  no  appeal  is  apt  to  forget  cir- 
cumspection in  its  sense  of  security. 

"The  passage  of  a  judge  from  the  bar  to  the  bench  does  not  nec- 
essarily divest  him  of  prejudices,  nor  chill  his  relations  to  the  particu- 
lar political  party  to  which  he  may  owe  his  advancement,  nor  blot  out 
of  his  memory  the  great  interests  which  he  may  have  professionally 
piloted  through  doubtful  straits,  nor  quiet  the  ambition  which  he  is 


THE   PEOPLE'S   RIGHT   OF   APPEAL  147 

not  required  to  renounce,  even  though  his  appointment  is  for  life,  nor 
cure  predilections  which  sometimes  have  their  seat  in  his  inmost 
nature. 

' '  But  the  Constitution  retains  the  means  of  protecting  itself  against 
the  errors  of  partial  or  interested  judgments.  In  the  first  place,  the 
force  of  a  judicial  opinion  of  the  Supreme  Court,  in  so  far  as  it  is  irre- 
versible, reaches  only  the  particular  case  in  dispute;  and  to  this  society 
submits,  in  order  to  escape  from  anarchy  in  the  daily  routine  of  busi- 
ness. 

"  To  the  decision  on  an  underlying  question  of  constitutional  law 
no  such  finality  attaches.  To  endure,  it  must  be  right.  If  it  is  right, 
it  will  approve  itself  to  the  universal  sense  of  the  impartial.  A  judge 
who  can  justly  lay  claim  to  integrity  will  never  lay  claim  to  infallibil- 
ity, but  with  indefatigable  research  will  add,  retract,  and  correct, 
whenever  more  mature  consideration  shows  the  need  of  it.  The  court 
is  itself  inferior  and  subordinate  to  the  Constitution;  it  has  only  a  dele- 
gated authority,  and  every  opinion  contrary  to  the  tenor  of  its  com- 
mission is  void,  except  as  settling  the  case  on  trial. 

''The  prior  act  of  a  superior  must  be  preferred  to  the  subsequent 
act  of  an  inferior;  otherwise  it  might  transform  the  limited  into  an 
unlimited  constitution.  When  laws  clash,  the  latest  law  is  rightly 
held  to  express  the  corrected  will  of  the  Legislature;  but  the  Constitu- 
tion is  the  fundamental  code,  the  law  of  laws;  and  where  there  is  a 
conflict  between  the  Constitution  and  a  decision  of  the  court,  the 
original  permanent  act  of  the  superior  outweighs  the  later  act  of  the 
inferior,  and  retains  its  own  supreme  energy  unaltered  and  unalterable 
except  in  the  manner  prescribed  by  the  Constitution  itself. 

"To  say  that  a  court,  having  once  discovered  an  error,  should  yet 
cling  to  it  because  it  has  once  been  delivered  as  its  opinion,  is  to 
invest  caprice  with  inviolability  and  make  a  wrong  judgment  of  a 
servant  outweigh  the  Constitution  to  which  he  has  sworn  obedience. 
An  act  of  the  Legislature  at  variance  with  the  Constitution  is  pro- 
nounced void;  an  opinion  of  the  Supreme  Court  at  variance  with  the 
Constitution  is  equally  so."  9 

This  passage  is  worthy  of  more  extended  notice. 

(a)  ' '  The  Supreme  Court  was  to  be  the  bulwark  against 
legislative  encroachments ' '  upon  the  rights  of  the  people. 
This  was  the  purpose  of  the  founders  of  that  tribunal.  But 


'Bryce,  Vol.  II,  pp.  201-203. 

10 


Of 


148  THE    RIGHTS    OF    THE    PEOPLE. 

did  the  people  erect  no  bulwark  against  judicial  encroach- 
ments? Or  did  they  suppose  that  supreme  judges  were  so 
decidedly  infallible  that  there  was  no  possibility  of  their  en- 
croaching even  unconsciously  ?  Did  they  think  it  impossible 
for  that  Court  to  make  a  mistake? — Nothing  of  the  kind. 
They  knew  that  even  supreme  judges,  being  only  men,  are 
just  like  other  men,  having  the  same  weaknesses  and  the  same 
liability  to  mistakes  as  other  men,  and  therefore  being  as  lia- 
ble as  legislators  to  mistake  the  meaning  of  the  Constitution 
and  to  encroach  upon  the  rights  of  the  people.  And  knowing 
that  "a  court  from  which  there  is  no  appeal  is  apt  to  forget 
circumspection  in  its  sense  of  security,"  and  is  thereby  only 
the  more  apt  to  make  mistakes  and  encroachments — knowing 
this,  the  people,  while  setting  the  Supreme  Court  as  the  bul- 
wark against  legislative  encroachments,  retained  to  themselves 
the  right  of  final  appeal,  judgment,  and  decision  upon  the  deci- 
sions of  the  court  touching  all  questions  of  the  Constitution. 

(ti)  "Where  there  is  a  conflict  between  the  Constitution  and 
a  decision  of  the  court,"  etc.  But  if  every  decision  of  the 
Supreme  Court  is  final  in  all  respects;  and  if  said  decisions  are 
to  be  accepted  as  final  as  to  the  meaning  of  the  Constitution ; 
then  it  would  be  impossible  that  there  ever  could  be  any  such 
thing  as  a  conflict  between  the  Constitution  and  a  decision  of 
the  court. 

Yet,  as  it  is  expressly  declared  in  the  Constitution  that 
the  people  have  reserved  certain  rights  and  powers  exclusively 
to  themselves,  and  so  have  forbidden  the  Supreme  Court  any 
jurisdiction  in  these,  it  is  clearly  possible  for  a  conflict  to  be 
made  between  the  .Constitution  and  a  decision  of  the  court. 
And  where  there  is  a  conflict  there  must  of  necessity  be  some 
authority  to  decide.  And  as  the  people  made  both  the  Con- 
stitution and  the  court;  and  as  the  people  stand  outside  of  and 
above  both  the  Constitution  and  the  court;  it  is  perfectly  plain 
that  in  all  cases  of  conflict  between  the  Constitution  and  the 


THE   PEOPLE'S    RIGHT   OF   APPEAL.  149 

Supreme  Court,  the  right  of  final  judgment  and  decision  lies 
with  the  people  as  an  inalienable  right, 

(V)  The  court  ' '  has  only  a  delegated  authority,  and  every 
opinion  contrary  to  the  tenor  of  its  commission  is  void."  But 
if  every  decision  of  the  court  is  to  be  accepted  as  final  in  all 
respects,  how  would  it  be  possible  for  any  opinion  ever  to  be 
void  ?  And  even  though  it  were  possible,  how  could  the  fact 
of  its  being  void  ever  be  discovered  ?  It  is  true  that  the  court 
has  only  a  delegated  authority,  and  that  every  opinion  con- 
trary to  the  tenor  of  its* commission,  that  is,  every  opinion 
contrary  to  the  tenor  of  the  Constitution,  is  void.  And  it  is 
equally  true  that  it  lies  with  the  people,  who  delegated  this 
authority,  to  discover  and  to  disregard  and  set  aside  as  void 
every  such  opinion.  And  this  prerogative  lies  with  the  people 
as  their  inalienable  right. 

(cT)  "An  act  of  the  Legislature  at  variance  with  the  Con- 
stitution is  pronounced  void.  An  opinion  of  the  Supreme 
Court  at  variance  with  the  Constitution  is  equally  so."  An 
act  of  the  Legislature  at  variance  with  the  Constitution  is  pro- 
nounced void  by  the  Supreme  Court.  But  when  an  opinion 
of  the  Supreme  Court  is  at  variance  with  the  Constitution, 
whose  prerogative  is  it  to  pronounce  this  void  and  to  treat  it 
so  ? — Clearly  this  is  the  prerogative  and  right  of  the  people. 

It  is  here  said,  and  repeated,  that  every  such  opinion  of 
the  court  "is  void."  This  is  true;  and  if  such  decisions  were 
completely  ignored  by  everybody,  and  so  left  meaningless  and 
void  as  they  are,  they  could  never  do  any  harm.  But  it  is 
hardly  possible  that  there  could  ever  be  a  decision  in  which 
nobody  would  have  sufficient  personal  interest  to  seek  to  make 
it  offeree  as  far  as  possible;  and  every  decision,  void  or  other- 
wise, always  stands  as  a  matter  of  record  to  be  taken  up  by 
interested  parties  and  used  as  a  precedent  upon  which  to  carry 
any  principle  involved,  to  its  fullest  extent  in  real  factitive  law. 
For  this  reason  it  is  incumbent  upon  the  people  to  see  that 


150  THE     RIGHTS     OF     THE  -PEOPLE. 

every  such  decision  is  so  positively  pronounced  void,  and 
regarded  so  by  themselves — the  supreme  and  ultimate  authority 
— that  it  shall  not  be  cited  even  as  a  precedent. 

For  that  such  is  the  authority  and  the  inalienable  right  of 
the  people  is  certainly  made  clear  both  by  the  principle  and 
by  the  authorities  cited  in  this  chapter. 

There  is  another  excellent  statement  of  this  principle,  which, 
though  not  bearing  exactly  the  force  of  national  authority,  is 
well  worthy  to  be  set  down  here.  It  is  in  every  respect  true, 
and  shows  how  this  subject  presents  itself  to  a  disinterested 
mind.  Here  it  is: — 

"How  and  by  whom,  in  case  of  dispute,  is  the  validity  or  invalidity 
of  a  statute  to  be  determined  ? — Such  determination  is  to  be  effected 
by  setting  the  statute  side  by  side  with  the  Constitution,  and  consider- 
ing whether  there  is  a  discrepancy  between  them.  Is  the  purpose  of 
the  statute  one  of  the  purposes  mentioned  or  implied  in  the  Constitu- 
tion ?  Does  it  in  pursuing  that  purpose  contain  anything  which  vio- 
lates any  clause  of  the  Constitution  ?  Sometimes  this  is  a  simple  ques- 
tion which  an  intelligent  layman  may  answer;  more  frequently  it  is  a 
difficult  one,  which  needs  not  only  the -subtlety  of  a  trained  lawyer, 
but  a  knowledge  of  former  cases  which  have  thrown  light  on  the  same 
or  a  similar  point.  In  any  event  it  is  an  important  question,  whose 
solution  ought  to  proceed  from  a  weighty  authority.  It  is  a  question 
of  interpretation,  that  is,  of  determining  the  true  meaning  both  of  the 
superior  law  [the  Constitution]  and  of  the  inferior  law  [the  statute],  so 
as  to  discover  whether  they  are  inconsistent.  Now  the  interpretation 
of  laws  belongs  to  courts  of  justice." 

"  How  is  the  interpreting  authority  restrained  ?  If  the  American 
Constitution  is  capable  of  being  so  developed  by  this  expansive  inter- 
pretation, what  security  do  its  written  terms  offer  to  the  people  and  to 
the  States  ?  .  .  .  There  stands  above  and  behind  the  Legislature, 
the  executive,  and  the  judiciary,  ANOTHER  POWER,  that  of  public 
opinion.  The  President,  Congress,  and  the  courts  are  all,  the  two 
former  directly,  the  latter  practically,  amenable  to  the  people.  .  .  . 
If  the  people  approve  the  way  in  which  these  authorities  are  interpret- 
ing and  using  the  Constitution,  they  go  on;  if  the  people  disapprove, 
they  pause,  or  at  least  slacken  their  pace.  .  .  .  The  people  have, 
of  course,  much  less  exact  notions  of  the:  Constitution  than  the  legal 


THE   PEOPLE'S   RIGHT   OF   APPEAL.  151 

profession  or  the  courts.  But  .  .  .  they  are  sufficiently  attached 
to  its  general  doctrines,  they  sufficiently  prize  the  protection  it  affords 
them  against  their  own  impulses,  to  censure  any  interpretation  which 
palpably  departs  from  the  old  lines." — Bryce,  American  Common- 
wealth, chapter  23,  par.  13,  14;  chapter  jj,  par.  20,  22. 

Certainly  the  Supreme  Court,  in  the  ''Christian  nation" 
decision,  has  palpably  enough  departed  from  the  old  lines  for 
its  interpretation  to  deserve  this  censure  of  the  people.  The 
question  now  is,  Are  the  people  indeed  sufficiently  attached  to 
this  great  leading  doctrine  of  the  Constitution  to  censure  this 
interpretation  that  subverts  that  doctrine  ?  This  decision  on 
that  point  is  void.  Will  the  people  declare  and  treat  it  so  ? 


CHAPTER  VIII. 


NATIONAL    PRECEDENT    ON    RIGHT    OF    APPEAL. 

As  before  remarked,  there  are  some  who,  in  addition  to 
the  principle,  desire  authority.  The  authority  has  been  given. 
Yet  there  are  still  others  who,  in  addition  to  both  the  principle 
and  the  authority,  desire  precedent  before  they  can  be  fully 
satisfied  of  the  correctness  of  a  position,  and  particularly  such 
a  position  as  is  held  in  this  discussion.  And,  fortunately  for 
all,  this  position  is  supported  by  every  kind  of  evidence  that 
any  person  may  desire.  It  is  supported  by  the  firm  evidence 
of  the  national  principle^  by  the  satisfactory  evidence  of  national 
authority,  and  by  the  final  evidence  of  national  precedent.  • 

The  question  still  under  discussion  is  the  right  of  the  people 
to  appeal  from  and  to  reverse  any  decision  of  the  Supreme 
Court  of  the  United  States  touching  any  matter  as  to  the 
meaning  or  interpretation  of  the  Constitution. 

There  are  two  notable  examples  of  national  precedent  on 
this  subject, — one  in  the  action  of  each  of  the  two  great  polit- 
ical parties  of  the  nation's  history,  the  Democratic  and  the 
Republican  parties. 

First,  during  President  Jackson's  administration  the 
Supreme  Court  decided  that  Congress  could  charter  a  National 
Bank,  and  that  such  bank  was  constitutional.  President  Jack- 
son '  'asserted  that  he,  as  president,  would  not  be  bound  to 
hold  a  National  Bank  to  be  constitutional,  even  though  the 
Court  had  decided  it  to  be  so,"  and,  accordingly,  vetoed  the 
Act  of  Congress  for  a  recharter.  ''The  whole  Democratic 
(152) 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL.  153 

party  revolted  against  that  decision"  of  the  Court,  and 
"reduced  the  decision  to  an  absolute  nullity."1 

Secondly,  the  Supreme  Court  of  the  United  States  once 
rendered  a  decision  on  the  slavery  question  in  which  a  specific 
interpretation  of  the  Constitution  was  made  in  favor  of  slavery 
as  a  national  institution,  and  such  interpretation  declared  to  be 
the  meaning  and  intent  of  the  Constitution.  The  decision 
was  endorsed  by  a  large  number  of  people,  and  it  was  ably 
defended  in  open  and  public  discussion  for  several  years  by 
one  of  the  leading  men  of  the  nation,  a  United  States  senator 
at  the  time — Stephen  A.  Douglas.  Yet  against  all  this,  that 
decision  was  openly  attacked,  first  in  comparative  obscurity 
and  under  great  reproach,  then  in  a  larger  field,  and  finally 
before  the  whole  nation,  by  Abraham  Lincoln;  and  the  deci- 
sion was  reversed  by  the  people  of  the  United  States. 

That  decision  was,  and  ever  since  has  been  known  as, 

THE    DRED   SCOTT  DECISION. 

As  this  precedent  is  so  marked,  so  apt,  so  undeniable,  so 
universally  known,  and  withal  so  perfect  a  parallel  with  the 
."Christian  nation"  decision,  it  will  be  discussed  here  as  fully 
as  the  question  demands. 

In  noticing  the  "Christian  nation"  decision  in  previous 
chapters  reference  has  been  made  more  than  once  to  the  close 
parallel  between  it  and  the  Dred  Scott  decision.  For  this 
reason  the  Dred  Scott  decision  is  of  double  value  in  this  dis- 
cussion, (a)  in  that  it  is  such  an  undeniable  national  precedent 
as  to  the  right  of  the  people  to  appeal  from  a  Supreme  Court 
decision ;  and  (3)  in  that  the  exact  parallel  between  it  and  the 
"Christian  nation"  decision  serves  to  set  in  the  strongest  pos- 
sible light  the  perfect  absurdity  of  the  "Christian  nation" 
decision  throughout. 


JSee  speeches  of  Abraham  Lincoln  at  Springfield,  111.,  June  26,  1857,  and  July  17, 
1858,  "Political  Speeches  and  Debates,"  pp.  43,  156. 


NATIONAL   PRECEDENT  ON    RIGHT  OK  APPEAL.  155 

We  shall  therefore  first  set  down  the  parallel  between 
these  two  decisions  in  such  a  way  that  no  one  can  fail  to 
see  it.  Next  we  shall  cite  the  arguments  made  in  defense  of 
the  Dred  Scott  decision  and  those  made  against  it,  pointing- 
out  the  application  of  both  to  the  "Christian  nation"  decision, 
though  indeed  the  application  is  so  plain  as  scarcely  to  be  mis- 
takable. 

The  main  point  of  the  Dred  Scott  decision  was  the  recog- 
nition of  slavery  as  a  national  institution  within  the  meaning 
and  intent  of  the  Constitution.  And  from  the  notice  already 
given  to  the  Christian  nation  decision  it  is  perfectly  clear  that 
its  main  point  is  the  recognition  of  the  "Christian  religion"  as 
a  national  institution  within  the  meaning  and  intent  of  the 
Constitution.  The  logic  of  the  one  made  this  a  slave  nation, 
as  the  logic  of  the  other  makes  this  a  "Christian  nation." 

No  one  denied  that,  under  the  Constitution,  slavery  was  a 
State  institution  and  a  State  question  in  such  States  as  had  it 
or  chose  to  have  it;  the  question  involved  in  the  Dred  Scott 
decision  was  whether  it  was  a  national  institution.  Likewise 
no  one  can  deny  that,  under  the  Constitution  as  it  was  origi- 
nally made,  religion  was  a  State  institution  and  a  State  question 
in  such  States  as  had  it  or  chose  to  have  it;  the  question 
involved  in  the  Christian  nation  decision  is  whether  it  is  a 
national  institution. 

The  task  therefore  before  the  Dred  Scott  court  was  to  show 
that  slavery  was,  and  was  intended  to  be,  included  in  the  Con- 
stitution of  the  United  States  as  a  national  affair;  just  as  the 
task  before  the  Christian  nation  court  was  to  show  that  "Chris- 
tianity, general  Christianity,"  is,  and  was  intended  to  be, 
included  in  the  Constitution  of  the  United  States  as  a  national 
affair. 

The  Dred  Scott  court  sought  to  acccomplish  its  task,  not 
by  the  examination  of  the  Constitution  itself,  nor  by* an  exam- 
ination of  the  proceedings  of  the  conventions  wherein  it  was 


156  THE     RIGHTS     OF     THE     PEOPLE. 

made  or  the  words  and  works  of  the  men  who  made  it — all  this 
was  left  out;  but  by  citing-  the  history  of  European  nations, 
the  legislation  of  the  Colonies,  the  Declaration  of  Independ- 
ence (!),  and  the  legislation  of  the  States,  precisely  as  the 
"Christian  nation"  court  sought  to  accomplish  its  task.  From 
this  evidence  the  Dred  Scott  court  drew  the  conclusion  that 
'  'the  right  of  property  in  a  slave  is  distinctly  and  expressly 
affirmed  in  the  Constitution;  precisely  as  the  Christian  nation 
court,  from  parallel  evidence,  and  by  parallel  method,  has 
drawn  the  conclusion  that  the  '  'meaning' '  of  the  language  of 
the  Constitution  is  that  "this  is  a  Christian  nation."  Neither 
Madison,  Jefferson,  nor  yet  Washington  is  as  much  as  named 
in  the  Dred  Scott  decision,  any  more  than  in  the  Christian 
nation  decision. 

The  Dred  Scott  court  made  as  its  leading  statement  the 
proposition  that  at  the  time  of  the  adoption  of  the  Constitu- 
tion— 

"They  [the  negro  race]  had  for  more  than  a  century  been  regarded 
as  beings  of  an  inferior  order,  and  altogether  unfit  to  associate  with 
the  white  race,  either  in  social  or  political  relations,  and  so  far  inferior 
that  they  had  no  rights  which  the  white  man  was  bound  to  respect; 
and  the  negro  might  justly  be  reduced  to  slavery  for  his  [the  white 
man's]  benefit." 

The  Christian  nation  court  made  as  its  leading  statement  the 
proposition  that — 

"This  is  a  religious  people.  This  is  historically  true.  From  the 
discovery  of  this  continent  to  the  present  hour  there  is  a  single  voice 
making  this  affirmation." 

To  prove  its  proposition  that  such  is  the  meaning  and  in- 
tent of  the  Constitution — 
The  Dred  Scott  court  said: —        The    Christian    nation    court 

said : — 
.    .M  [i] 

"The  public  history  of  every  "The  commission  to  Christo- 

European  nation  displays  it  in  a        pher  Columbus  prior  to  his  sail 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL. 


157 


manner  too  plain  to  be  mistaken. 
.  .  .  And  in  no  nation  was 
this  opinion  more  firmly  fixed  or 
more  uniformly  acted  upon  than 
by  the  English  government  and 
English  people.  .  *.  . 

The  opinion  thus  entertained 
and  acted  upon  in  England  was 
naturally  impressed  upon  the  Col- 
onies '  they  founded  on  this  side 
of  the  Atlantic." 


[2] 

"Accordingly,  a  negro  of  the 
African  race  was  regarded  by 
them  [the  Colonies]  as  an  article 
of  property,  and  held  and  bought 
and  sold  as  such  in  every  one  of 
the  thirteen  Colonies  which 
united  in  the  Declaration  of  In- 
dependence, and  afterwards 
formed  the  Constitution  of  the 
United  States.  .  .  .  The  leg- 
islation of  the  different  Colonies 
furnishes  positive  and  indisput- 
able proof  of  this  fact.  It  would 
be  tedious  ...  to  enumerate 
the  various  laws  passed  upon 
this  subject.  ...  As  a  sam- 
ple of  the  legislation  .  .  . 
the  province  of  Maryland,  in 
1717,  passed  a  law,  etc. 

"The  other  colonial  law  to 
which  we  refer  was  passed  by 
Mas'sachussetts  in  1705,"  etc.- 

-  The  Christian  nation  court  could  have  obtained  from  this  same  law  of  Massachu- 
setts additional  valuable  (?)  evidence  in  favor  of  its  theory;  for  twice  in  this  act  the 
definite  phrase  "Christian  nation"  is  used.  See  decision,  Appendix  U. 


westward,  is  from  Ferdinand  and 
Isabella,  etc.  .  .  .  The  first 
colonial  grant,  that  made  to  Sir 
Walter  Raleigh,  in  1584,  was 
from  'Elizabeth,  by  the  Grace  of 
God,  of  England,  Fraunce,  and 
Ireland,  queene,  defender  of  the 
faith,'  etc.  .  .  .  The  first 
charter  of  Virginia,  granted  by 
King  James  I.  ...  Lan- 
guage of  similar  import  may  be 
found  in  the  subsequent  charters 
of  that  Colony  from  the  same  king. 
.  .  .  In  language  more  or  less 
emphatic  is  the  establishment  of 
the  Christian  religion  declared  to 
be  one  of  the  purposes  of  the 
grant." 

[2] 

"The  celebrated  compact 
made  by  the  pilgrims  in  the  May- 
flower, 1620,  recites,  etc. 

"The  fundamental  orders  of 
Connecticut,  under  which  a  pro- 
visional government  was  insti- 
tuted in  1638,  1639,  commence 
with  this  declaration,  etc. 

"In  the  charter  of  privileges 
granted  by  William  Penn  to  the 
province  of  Pennsylvania,  in  1701, 
it  is  recited,"  etc. 


'58 


THE     RIGHTS     OF     THE     PEOPLE. 


[3] 

'  'The  language  of  the  Decla- 
ration of  Independence  is  equally 
conclusive." 

[4] 

"When  we  look  to  the  con- 
dition of  this  race  in  the  several 
States  at  the  time.  .  .  .  And 
we  may  here  again  refer  .  .  . 
to  the  plain  and  unequivocal  lan- 
guage of  the  laws  of  the  several 
States.  .  .  .  Their  statute 
books  are  full  of  provisions  relat- 
ing to  this  class,"  etc. 

"Thus  Massachusetts,  in  1 786," 
etc. 

"So,  too,  in  Connecticut,  1774, 
1784,1833." 

"By  the  laws  of  New  Hamp- 
shire, collected  and  finally  passed 
in  1815,  ...  a  subsequent 
collection  made  in  1855." 

"In  1822  Rhode  Island,  in  its 
revised  code,  .  .  .  reenacted 
in  its  revised  code  of  1844." 


[5] 

"It  would  be  impossible  to 
enumerate  .  .  .  the  various 
laws  marking  the  condition  of 
this  race.  ...  In  addition  to 
those  already  referred  to,  it  is 
sufficient  to  say  that  Chancel- 
'  lor  Kent,  whose  accuracy  and  re- 
search no  one  will  question, 
states,"  etc. 


[3] 

"Coming  nearer  to  the  pres- 
ent time,  the  Declaration  of  Inde- 
pendence recognizes,  etc." 

*   [4] 

"If  we  examine  the  constitu- 
tions of  the  various  States  we 
find  in  them  a  constant  recogni- 
tion of  religious  obligations. 
Every  constitution  of  every  one 
of  the  forty-four  States  contains 
language  which  either  directly  or 
by  clear  implication  recognizes," 
etc. 

"The  Constitution  of  Illinois, 
1870,"  etc. 

"The  Constitution  of  Indiana, 
1816,"  etc. 

"The  Declaration  of  Rights 
of  the  Constitution  of  Maryland, 
1867,"  etc. 

"Or  like  .  .  .  the  Consti- 
tution of  Massachusetts,  1780," 
etc. 

"Or  .  .  .  the  Constitution 
of  Mississippi,  1832,"  etc. 

"Or  .  .  .  the  Constitution 
of  Delaware.  1776." 

[5] 

"While,  because  of  a  general 
recognition  of  this  truth,  the 
question  has  seldom  been  pre- 
sented to  the  courts,  yet  we  find 
that  in  Updegraph  vs.  the  Com- 
monwealth, it  was  decided  that 
'Christianity,  general  Christian- 
ity, is,  and  always  has  been,  a 
part  of  the  Common  Law  of  Penn- 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL. 


159 


[6] 

"They  [these  laws]  .  .  . 
are  a  faithful  index  to  the  state 
of  feeling  towards  the  class  of 
persons  of  whom  they  speak.  . 

.  They  show  that  a  perpetual 
and  impassable  barrier  was  in- 
tended to  be  erected  between  the 
white  race  and  the  one  which 
they  had  reduced  to  slavery,  and 
governed  as  subjects  with  abso- 
ute  and  despotic  power.  .  .  . 

"IVe  refer  to  these  historical 
facts  for  the  purpose  of  showing 
the  fixed  opinions  concerning 
that  race,  upon  which  the  states- 
men of  that  day  spoke  and  acted. 
It  is  necessary  to  do  this,  in  or- 
der to  determine  whether  the 
general  terms  used  in  the  Consti- 
tution of  the  United  States  as  to 
the  rights  of  man  and  the  rights 
of  the  people  was  intended  to  in- 
clude them,  or  to  give  to  them 
or  their  posterity  the  benefit  of 
any  of  its  provisions." 

"Now,  as  we  have  already 
said  in  an  earlier  part  of  this 
opinion,  the  right  of  property  in 
a  slave  is  distinctly  and  expressly 
affirmed  in  the  Constitution. " 


sylvania.  .  .  .  And  in  the 
People  vs.  Ruggles,  Chancellor 
Kent,  the  great  commentator  on 
American  law,  .  .  .  said," 
etc. 

[6] 

"Even  the  Constitution  of  the 
United  States  .  .  .  contains 
in  the  first  amendment  a  decla- 
ration common  to  the  constitu- 
tions of  all  the  States.  .  . 
There  is  no  dissonance  in  these 
declarations.  There  is  a  uni- 
versal language  pervading  them 
all,  having  one  meaning;  they 
affirm  and  reaffirm  that  this  is  a 
religious  nation.  These  are  not 
individual  sayings,  declarations 
of  private  persons;  they  are  or 
ganic  utterances;  they  speak  the 
voice  of  the  entire  people." 


' '  These  y  and  many  other 
matters  which  might  be  noticed, 
add  a  volume  of  unofficial  decla- 
rations to  the  mass  of  organic 
utterances  that  THIS  is  A  CHRIS- 
TIAN NATION." 


In  view  of  these  quotations,  no  man  can  deny  that  the  Dred 
Scott  decision  and  the  Christian  nation  decision  are  in  princi- 


160  THE     RIGHTS     OF     THE     PEOPLE. 

pie  and  in  method  exactly  parallel.  And  as  certainly  as  the 
Dred  Scott  decision  established  slavery  as  a  national  institution, 
so  certainly  the  Christian  nation  decision  establishes  '  'the  Chris- 
tian religion' '  as  a  national  institution.  According  to  the  plain 
words  of  the  Dred  Scott  decision,  slavery  is  absolutism  and 
despotism.  This  is  the  truth;  and  it  is  no  less  the  truth  that 
any  governmental  establishment  of  "the  Christian  religion"  is 
also  sheer  absolutism  and  despotism.  Slavery  is  civil  despotism ; 
established  religion  is  religious  despotism.  Of  the  former 
Abraham  Lincoln  said:  "When  the  white  man  governs  himself, 
that  is  self-government;  but  when  he  governs  himself  and  also 
another  man,  that  is  more  than  self-government — that  is  despot- 
ism."1 And  of  the  latter  say  we:  When  any  man  chooses  to 
be  religious  for  himself,  that  is  religious  freedom ;  but  when  any 
man  proposes  to  be  religious  for  himself  and  also  for  another  man, 
that  is  less  than  religious  freedom — that  is  religious  despotism. 
As  certainly  therefore  as  the  Dred  Scott  decision,  in  nationaliz- 
ing slavery,  established  a  national  civil  despotism,  if  that  deci- 
sion had  not  been  reversed,  so  certainly  the  Christian  nation 
decision,  in  nationalizing  "the  Christian  religion,"  establishes 
a  national  religious  despotism,  if  this  decision  shall  not  be 
reversed. 

Undoubtedly  the  real  bearing  of  the  Dred  Scott  decision  in 
all  its  parts  was  more  clearly  seen  by  Abraham  Lincoln  than 
by  any  other  man  in  the  United  States.  The  leadership  of  the 
opposition  to  the  decision  therefore  naturally  fell  to  him,  while, 
from  whatever  cause,  the  defense  of  the  decision  devolved  upon 
United  States  Senator  Stephen  A.  Douglas.  And  not  only 
does  the  parallel  hold  good  as  between  these  two  decisions  in 
themselves,  but  it  continues  throughout  the  discussion  of  the 
two  decisions — the  main  arguments  made  in  defense  of  the 
Dred  Scott  decision,  or  in  apology  for  it,  are  precisely  the  ones 
that  are  now  made  in  support  of  the  Christian  nation  decision, 

3  Missouri  Compromise  Speech,  before  referred  to. 


NATIONAL  PRECEDENT  OX  RIGHT  OF  APPEAL.  l6l 

or  in  apology  for  it,  while  every  argument  made  against  the  Dred 
Scott  decision  is  equally  valid  and  lies  with  full  force  against 
the  Christian  nation  decision.  Indeed,  in  many  instances  the 
mere  insertion  of  the  words  '  'Christian  nation"  instead  of  the 
words  "Dred  Scott,"  and  the  words  "religion"  or  "religious 
despotism"  in  place  of  the  word  "slavery,"  will  make  whole 
pages  of  Lincoln's  speeches  as  applicable  and  as  powerful 
against  the  Christian  nation  decision  and  its  bearing  as  they 
were  against  the  Dred  Scott  decision  and  its  bearing. 

Of  course  these  arguments  pro  and  con.  cannot  be  given  or 
even  indicated  here  in  detail.  The  main  ones,  however,  even 
at  some  length,  may  properly  be  here  set  down,  because  it  is 
in  forgetting  this  history  that  this  vital  principle  of  the  nation  is 
forgotten.  And  let  it  not  be  forgotten  that  in  reproducing  this 
matter  here,  the  sole  object  is  to  demonstrate  the  utter  weak- 
ness of  the  "Christian  nation"  decision  and  of  the  arguments 
in  its  favor,  and,  on  the  other  hand,  to  demonstrate  the  perfect 
propriety,  and,  indeed,  the  necessity  of  uncompromising  opposi- 
tion to  that  decision,  upon  national  principle,  upon  national 
authority,  and  upon  national  precedent. 

The  arguments  reproduced  here  as  once  made  in  behalf  of 
the  Dred  Scott  decision,  are  in  very  substance,  and  largely  in 
very  words,  the  arguments,  and  the  only  ones,  that  are  now 
made  or  that  can  be  made  in  behalf  of  the  Christian  nation 
decision.  And  the  answer  to  these  arguments  in  the  former 
case  are  exactly  our  answers  now  in  this  latter  case.  The  deci- 
sions and  the  arguments  in  favor  of  it  were  invalid  in  the  former 
case,  and  so  they  are  in  the  latter  case,  while  the  opposition 
and  the  arguments  thereof,  being  proper,  sound,  and  constitu- 
tional against  the  former  decision,  so  they  are  also  against  the 
latter  decision. 

FOR   AND    AGAINST    THE    DECISIONS. 

The  former  decision,  was  finally  delivered  about  the  begin- 


1 62  THE     RIGHTS     OF    THE     PEOPLE. 

ning  of  the  year  1857.  It  made  a  great  commotion,  and  the 
opposition  was  instant  and  open  and  emphatic.  Against  this 
opposition  the  affirmative — Senator  Douglas — in  behalf  of  the 
decision  declared: — 

"The  courts  are  the  tribunals  prescribed  by  the  Constitution  and 
created  by  the  authority  of  the  people  to  determine,  expound,  and 
enforce  the  law.  Hence,  whoever  resists  the  final  decision  of  the 
highest  judicial  tribunal,  aims  a  deadly  blow  at  our  whole  republican 
system  of  government — a  blow  which,  if  successful,  would  place  all 
our  rights  and  liberties  at  the  mercy  of  passion,  anarchy,  and  violence. 
I  repeat,  therefore,  that  if  resistance  to  the  decision  of  the  Supreme 
Court  of  the  United  States  in  a  matter  like  the  points  decided  in  the 
Dred  Scott  case,  clearly  within  their  jurisdiction  as  defined  by  the 
Constitution,  shall  be  forced  upon  the  country  as  a  political  issue,  it 
will  become  a  distinct  and  naked  issue  between  the  friends  and  ene- 
mies of  the  Constitution — the  friends  and  the  enemies  of  the  supremacy 
of  the  laws."4 — Political  Speeches  and  Debates,  p.  43. 

To  this  the  opposition — Abraham  Lincoln,  Springfield,  111. , 
June  26,  1857 — replied: — 

"And  now  as  to  the  Dred  Scott  decision.  That  decision  declares 
two  propositions — first,  that  a  negro  cannot  sue  in  the  United  States 
courts;  and,  secondly,  that  Congress  cannot  prohibit  slavery  in  the 
Territories.  .  .  .  Judge  Douglas  .  .  .  denounces  all  who  ques- 
tion the  correctness  of  that  decision,  as  offering  violent  resistance  to  it. 
But  who  resists  it?  Who  has,  in  spite  of  the  decision,  declared  Dred 
Scott  free,  and  resisted  the  authority  of  his  master  over  him  ? 

* 'Judicial  decisions  have  two  uses — first,  to  absolutely  determine 
the  case  decided;  and,  secondly,  to  indicate  to  the  public  how  other 
similar  cases  will  be  decided  when  they  arise.  For  the  latter  use 
they  are  called  'precedents'  and  'authorities.' 

"We  believe  as  much  as  Judge  Douglas  (perhaps  more)  in  obedi- 
ence to,  and  respect  for,  the  judicial  department  of  the  government. 
.  .  .  But  we  think  the  Dred  Scott  decision  is  erroneous.  We  know 
the  court  that  made  it,  has  often  overruled  its  own  decisions,  and  we 
shall  do  what  we  can  to  have  it  overrule  this.  We  offer  no  resistance 


4  1  have  been  unable  to  find  the  complete  speech  in  which  this  was  said.  It  is  there- 
fore taken  from  Lincoln's  speech  at  Springfield,  111.,  June  26,  1857.  just  as  there  it 
stands.  Douglas's  speech  was  made  "two  weeks"  before  this. 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL.  163 

to  it.  ...  It  is  not  resistance,  it  is  not  factious,  it  is  not  even  dis- 
respectful, to  treat  it  as  not  having  yet  quite  established  a  settled  doc- 
trine for  the  country.  But  Judge  Douglas  considers  this  view  awful." 
— Political  Speeches  and  Debates,  pp.  4.2,  43. 

In  1858  Lincoln  and  Douglas  were  rival  candidates  for  the 
United  States  senatorship;  and  the  Dred  Scott  decision  was 
the  leading  issue.  Friday  evening,  July  9,  Senator  Douglas 
made  a  speech  in  Chicago,  in  which,  noticing  Lincoln's  speech 
upon  his  nomination  for  senator,  he  said: — 

"The  other  proposition  discussed  by  Mr.  Lincoln  in  his 
speech,  consists  in  a  crusade  against  the  Supreme  Court  of  the 
United  States  on  account  of  the  Dred  Scott  decision.  On  this 
question  also  I  desire  to  say  to  you  unequivocally,  that  I  take 
direct  and  distinct  issue  with  him.  I  have  no  warfare  to  make 
on  the  Supreme  Court  of  the  United  States,  either  on  account 
of  that  or  any  other  decision  which  they  have  pronounced 
from  that  bench.  The  Constitution  of  the  United  States  has 
provided  that  the  powers  of  government  (and  the  constitution 
of  each  State  has  the  same  provision)  shall  be  divided  into 
three  departments — Executive,  Legislative,  and  Judicial.  The 
right  and  the  province  of  expounding  the  Constitution  and  con- 
struing the  law  are  vested  in  the  judiciary  established  by  the 
Constitution.  As  a  lawyer,  I  feel  at  liberty  to  appear  before 
the  court  and  controvert  any  principle  of  law  while  the  ques- 
tion is  pending  before  the  tribunal;  but  when  the  decision  is 
made,  my  private  opinion,  your  opinion,  all  other  opinions, 
must  yield  to  the  majesty  of  that  authoritative  adjudication. 

"I  wish  you  to  bear  in  mind  that  this  involves  a  great  prin- 
ciple, upon  which  our  rights,  our  liberty,  and  our  property  all 
depend.  What  security  have  you  for  your  property,  for  your 
reputation,  and  for  your  personal  rights,  if  the  courts  are  not 
upheld,  and  their  decisions  respected  when  once  fairly  rendered 
by  the  highest  tribunal  known  to  the  Constitution? 

"I  do  not  choose,  therefore,  to  go  into  any  argument  with 
Mr.  Lincoln  in  reviewing  the  various  decisions  which  the 
Supreme  Court  has  made,  either  upon  the  Dred  Scott  case  or 
any  other.  I  have  no  idea  of  appealing  from  the  decision  of 
the  Supreme  Court  upon  a  constitutional  question  to  the 
decisions  of  a  tumultuous  town  meeting.  I  am  aware  that 
once  an  eminent  lawyer  of  this  city,  now  no  more,  said  that 
ii 


164  THE     RIGHTS     OF  THE     PEOPLE. 

the  State  ot  Illinois  had  the  most  perfect  judicial  system  in  the 
world,  subject  to  but  one  exception,  which  could  be  cured  by 
a  slight  amendment,  and  that  amendment  was  to  so  change 
the  law  as  to  allow  an  appeal  from  the  decisions  of  the  Supreme 
Court  of  Illinois,  on  all  constitutional  questions,  to  justices  of 
the  peace. 

"  My  friend,  Mr.  Lincoln,  who  sits  behind  me,  reminds  me 
that  that  proposition  was  made  when  I  was  judge  of  the 
Supreme  Court.  Be  that  as  it  may,  I  do  not  think  that  fact 
adds  any  greater  weight  or  authority  to  the  suggestion.  It 
matters  not  with  me  who  was  on  the  bench,  whether  Mr.  Lin- 
coln or  myself,  whether  a  Lockwood  or  a  Smith,  a  Taney  or 
a  Marshall;  the  decision  of  the  highest  tribunal  known  to  the 
Constitution  of  the  country  must  be  final  till  it  is  reversed  by 
an  equally  high  authority.  Hence,  I  am  opposed  to  this 
doctrine  of  Mr.  Lincoln  by  which  he  proposes  to  take  an 
appeal  from  the  decision  of  the  Supreme  Court  of  the  United 
States,  upon  this  high  constitutional  question,  to  a  Republican 
caucus  sitting  in  the  country.  Yes,  or  any  other  caucus  or 
town  meeting,  whether  it  be  Republican,  American,  or  Demo- 
cratic. I  respect  the  decisions  of  that  august  tribunal.  I  shall 
always  bow  in  deference  to  them.  I  am  a  law-abiding  man. 
I  will  sustain  the  Constitution  of  the  country  as  our  fathers 
have  made  it.  I  will  yield  obedience  to  the  laws  whether  I 
like  them  or  not,  as  I  find  them  on  the  statute  book.  I  will 
sustain  the  judicial  tribunals  and  constituted  authorities  in  all 
matters  within  the  pale  of  their  jurisdiction  as  defined  by  the 
Constitution." — Id., pp.  69,  70. 

The  next  night,  July  10,  1858,  Lincoln  spoke  in  reply  to 
Douglas,  and  upon  this  point  said: — 

"Another  of  the  issues  he  says  that  is  to  be  made  with  me 
is  upon  his  devotion  to  the  Dred  Scott  decision,  and  my  oppo- 
sition to  it. 

"I  have  expressed  heretofore,  and  I  now  repeat  my  oppo- 
sition to  the  Dred  Scott  decision;  but  I  should  be  allowed  to 
state  the  nature  of  that  opposition,  and  I  ask  your  indulgence 
while  I  do  so.  What  is  fairly  implied  by  the  term  Judge 
Douglas  has  used,  'resistance  to  the  decision'  ?  I  do  not 
resist  it.  If  I  wanted  to  take  Dred  Scott  from  his  master,  I 
.would  be  interfering  with  property,  and  that  terrible  difficulty 
that  Judge  Douglas  speaks  of,  of  interfering  with  property, 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL.  165 

would  arise.  But  I  am  doing  no  such  thing  as  that;  but  all  that  I 
am  doing  is  refusing  to  obey  it  as  a  political  rule.  If  I  were  in 
Congress,  and  a  vote  should  come  up  on  a  question  whether 
slavery  should  be  prohibited  in  a  new  territory,  in  spite  of  the 
Dred  Scott  decision  I  would  vote  that  it  should. 

''That  is  what  I  should  do.  Judge  Douglas  said  last  night 
that  before  the  decision  he  might  advance  his  opinion  and  it 
might  be  contrary  to  the  decision  when  it  was  made,  but  after 
it  was  made,  he  would  abide  by  it  until  it  was  reversed.  Just 
so!  We  let  this  property  abide  by  the  decision,  but  we  will 
try  to  reverse  that  decision.  We  will  try  to  put  it  where  Judge 
Douglas  would  not  object,  for  he  says  he  will  obey  it  until  it  is 
reversed.  Somebody  has  to  reverse  that  decision,  since  it  was 
made,  and  we  mean  to  reverse  it,  and  we  mean  to  do  it  peace- 
ably. 

' '  What  are  the  uses  of  decisions  of  courts  ? — They  have 
two  uses.  As  rules  of  property  they  have  two  uses.  First, 
they  decide  upon  the  question  before  the  court.  They  decide 
in  this  case  that  Dred  Scott  is  a  slave;  nobody  resists  that. 
Not  only  that,  but  they  say  to  everybody  else  that  persons 
standing  just  as  Dred  Scott  stands,  are  as  he  is.  That  is,  they 
say  that  when  a  question  comes  up  upon  another  person,  it 
will  be  so  decided  again,  unless  the  court  decides  in  another 
way,  unless  the  court  overrules  its  decision.  Well,  we  mean 
to  do  what  we  can  to  have  the  court  decide  the  other  way. 
That  is  one  thing  we  mean  to  try  to  do. 

"The  sacredness  that  Judge  Douglas  throws  around  this 
decision  is  a  degree  of  sacredness  that  has  never  been  before 
thrown  around  any  other  decision.  I  have  never  heard  of 
such  a  thing.  Why,  decisions  apparently  contrary  to  that 
decision,  or  that  good  lawyers  thought  were  contrary  to  that 
decision,  have  been  made  by  that  very  court  before.  It  is  the 
first  of  its  kind;  it  is  an  astonisher  in  legal  history;  it  is  a  new 
wonder  of  the  world.  It  is  based  upon  falsehood  in  the  main 
as  to  facts;  allegations  of  facts  upon  which  it  stands  are  not 
facts  at  all  in  many  instances,  and  no  decision  made  on  any 
question — the  first  instance  of  a  decision  made  under  so  many 
unfavorable  circumstances — thus  placed,  has  ever  been  held  by 
the  profession  as  law,  and  it  has  always  needed  confirmation 
before  the  lawyers  regarded  it  as  settled  law.  But  Judge 
Douglas  will  have  it  that  all  hands  must  take  this  extraordinary 
decision,  made  under  these  extraordinary  circumstances,  and 


166  THE     RIGHTS     OF     THE     PEOPLE. 

give  their  vote  in  Congress  in  accordance  with  it,  yield  to  it, 
and  obey  it  in  every  possible  sense." — Id,,  84,  85. 

Again:  In  a  speech  at  Bloomington,  Illinois,  July  16,  1858, 
Senator  Douglas  said: — 

"  I  therefore  take  issue  with  Mr.  Lincoln  directly  in  regard 
to  this  warfare  upon  the  Supreme  Court  of  the  United  States. 
I  accept  the  decision  of  that  court  as  it  was  pronounced. 
Whatever  my  individual  opinions  may  be,  I,  as  a  good  citizen, 
am  bound  by  the  laws  of  the  land  as  the  Legislature  makes 
them,  as  the  court  expourfds  them,  and  as  the  executive  officer 
administers  them.  I  am  bound  by  our  Constitution  as  our 
fathers  made  it,  and  as  it  is  our  duty  to  support  it.  I  am  bound 
as  a  good  citizen  to  sustain  the  constituted  authorities,  and  to 
resist,  discourage,  and  beat  down,  by  all  lawful  and  peaceful 
means,  all  attempts  at  exciting  mobs,  or  violence,or  any  other 
revolutionary  proceedings,  against  the  Constitution  and  the 
constituted  authorities  of  the  country." — Id., pp.  108,  109. 

The  next  night,  July  17,  at  Springfield,  Illinois,  Lincoln 
replied  and  said:— 

"Now  as  to  the  Dred  Scott  decision,  for  upon  that  he 
makes  his  last  poi"nt  at  me.  He  boldly  takes  ground  in  favor 
of  that  decision. 

'  'This  is  one-half  the  onslaught,  and  one-third  of  the  plan, 
of  the  entire  campaign.  I  am  opposed  to  that  decision  in  a 
certain  sense,  but  not  in  the  sense  which  he  puts  on  it.  I  say 
that  in  so  far  as  it  decided  in  favor  of  Dred  Scott's  master, 
and  against  Dred  Scott  and  his  family,  I  do  not  propose  to 
disturb  or  resist  the  decision. 

"I  never  have  proposed  to  do  any  such  thing.  I  think 
that  in  respect  for  judicial  authority  my  humble  history  would 
not  suffer  in  comparison  with  that  of  Judge  Douglas.  He 
would  have  the  citizen  conform  his  vote  to  that  decision;  the 
member  of  Congress,  his;  the  President,  his  use  of  the  veto 
power.  He  would  make  it  a  rule  of  political  action  for  the 
people  and  all  the  departments  of  the  government.  I  would 
not.  By  resisting  it  as  a  political  rule,  I  disturb  no  right  of 
property,  create  no  disorder,  excite  no  mobs." — Id., p.  7^5* . 


NATIONAL  PRECEDENT  ON   RIGHT  OF  APPEAL.  167 

Once  more:  In  the  debate  at  Galesburg,  Illinois,  October 
7,  1858,  between  them,  Douglas  said: — 

''Why  this  attempt  then  to  bring  the  Supreme  Court  into 
disrepute  among  the  people  ?  It  looks  as  if  there  was  an 
-effort  being  made  to  destroy  public  confidence  in  the  highest 
judicial  tribunal  on  earth.  Suppose  he  succeeds  in  destroying 
public  confidence  in  the  court,  so  that  the  people  will  not 
respect  its  decisions,  but  will  feel  at  liberty  to  disregard  them 
and  resist  the  laws  of  the  land,  what  will  he  have  gained? 
He  will  have  changed  the  government  from  one  of  laws  into 
that  of  a  mob,  in  which  the  strong  arm  of  violence  will  be 
substituted  for  the  decisions  of  the  courts  of  justice.  He  com- 
plains because  I  do  not  go  into  an  argument  reviewing  Chief 
Justice  Taney's  opinion,  and  the  other  opinions  of  the  differ- 
ent judges,  to  determine  whether  their  reasoning  is  right  or 
wrong  on  the  questions  of  law.  What  use  would  that  be  ?  He 
wants  to  take  an  appeal  from  the  Supreme  Court  to  this  meet- 
ing, to  determine  whether  the  questions  of  law  were  decided 
properly.  He  is  going  to  appeal  from  the  Supreme  Court  of 
the  United  States  to  every  town  meeting,  in  the  hope  that  he 
can  excite  a  prejudice  against  that  court,  and  on  the  wave  of 
that  prejudice  ride  into  the  Senate  of  the  United  States  when 
he  could  not  get  there  on  his  own  principles  or  his  own  merits." 
—Id.,  pp.  372,373- 

And  in  the  debate  at  Ouincy  he  said: — 

44 He  [Lincoln]  tells  you  that  he  does  not  like  the  Dred 
Scott  decision.  Suppose  he  does  not;  how  is  he  going  to 
help  himself?  He  says  he  will  reverse  it.  How  will  he  re- 
verse it?  I  know  of  but  one  mode  of  reversing  judicial  deci- 
sions, and  that  is  by  appealing  from  the  inferior  to  the  superior 
court.  But  I  have  never  yet  learned  how  or  where  an  appeal 
could  be  taken  from  the  Supreme  Court  of  the  United  States! 
The  Dred  Scott  decision  was  pronounced  by  the  highest  tri- 
bunal on  earth.  From  that  decision  there  is  no  appeal  this 
side  of  heaven" — Id. ,  pp.  396,  397. 

In  the  Quincy,  Illinois,  debate,  October  13,  1858,  upon 
this  Lincoln  said: — 

"We  oppose  the  Dred  Scott  decision  in  a  certain  way, 
upon  which  I  ought  perhaps  to  address  you  a  few  words.  We. 


l68  THE     RIGHTS     (.)!••     THE     PEOPLE. 

do  not  propose  that  when  Dred  Scott  has  been  decided  to  be 
a  slave  by  the  court,  we,  as  a  mob,  will  decide  him  to  be  free. 
We  do  not  propose  that  when  any  other  one,  or  one  thousand, 
shall  be  decided  by  that  court  to  be  slaves,  we  will  in  any  vio- 
lent way  disturb  the  rights  of  property  thus  settled;  but  we 
nevertheless  do  oppose  that  decision  as  a  political  rule  which 
shall  be  binding  on  the  voter  to  vote  for  nobody  who  thinks  it 
wrong,  which  shall  be  binding  on  the  members  of  Congress, 
or  the  President,  to  favor  no  measure  which  does  not  actually 
concur  with  the  principles  of  that  decision.  We  do  not  pro- 
pose to  be  bound  by  it  as  a  political  rule  in  that  way,  because 
we  think  it  lays  the  foundation  not  merely  of  enlarging  and 
spreading  out  what  we  consider  an  evil,  but  it  lays  the 
foundation  for  spreading  that  evil  into  the  States  themselves. 
We  propose  so  resisting  it  as  to  have  it  reversed  if  we  can,  and 
a  new  judicial  rule  established  upon  this  subject." — Id.,  p.  384. 

THE  MEANING  OF  THE  DECLARATION. 

Another  leading  point  in  defense  of  the  decision,  was 
the  necessity  of  maintaining  the  correctness  of  the  use  that  the 
court  had  made  of  the  Declaration  of  Independence.  The  court 
had  argued  as  follows: — 

"The  language  of  the  Declaration  of  Independence  is 
equally  conclusive.  It  begins  by  declaring.  ...  It  then 
proceeds  to  say:  'We  hold  these  truths  to  be  self-evident: 
that  all  men  are  created  equal;  that  they  are  endowed  by  their 
Creator  with  certain  unalienable  rights;  that  among  them  are 
life,  liberty,  and  the  pursuit  of  happiness;  that  to  secure  these 
rights,  governments  are  instituted  deriving  their  just  powers 
from  the  consent  of  the  governed;' 

' '  The  general  words  above  used  would  seem  to  embrace 
the  whole  human  family,  and  if  they  were  used  in  a  similar 
instrument  at  this  day,  would  be  so  understood.  But  it  is  too 
clear  for  dispute  that  the  enslaved  African  race  were  not  in- 
tended to  be  included,  and  formed  no  part  of  the  people  who 
framed  and  adopted  this  Declaration,  for  if  the  language  as 
understood  in  that  day  would  embrace  them,  then  the  conduct 
of  the  distinguished  men  who  framed  the  Declaration  of  Inde- 
pendence would  have  been  utterly  and  flagrantly  inconsistent 
with  the  principles  they  asserted;  and  instead  of  the  sympathy 


NATIONAL  PRECEDKXT  OX   RIGHT  OF  APPEAL.  169 

of  mankind,  to  which  they  confidently  appealed,  they  would 
have  deserved  and  received  universal  rebuke  and  reprobation. 
"Yet  the  men  who  framed  this  Declaration  were  great 
men — high  in  literary  acquirements — high  in  their  sense  of 
honor,  and  incapable  of  asserting  principles  inconsistent  with 
those  on  which  they  were  acting.  They  perfectly  understood 
the  meaning  of  the  language  they  used,  and  how  it  would  be 
understood  by  others;  and  they  knew  that  it  would  not  in  any 
part  of  the  civilized  world  be  supposed  to  embrace  the  negro 
race,  which  by  common  consent  had  been  excluded  from  civil- 
ized governments  and  the  family  of  nations,  and  doomed  to 
slavery." 

In  support  of  this  view  of  the  Supreme  Court  that  "all 
men"  did  not  include  the  negro,  Senator  Douglas  argued 
thus: — 

' '  No  man  can  vindicate  the  character,  motives,  and  con- 
duct of  the  signers  of  the  Declaration  of  Independence  except 
upon  the  hypothesis  that  they  referred  to  the  white  race  alone, 
and  not  to  the  African,  when  they  declared  all  men  to  have 
been  created  equal." — Quoted  by  Lincoln,  Springfield,  III., 
speech,  June  26,  1857;  Id  ,p.  48. 

"  I  believe  the  Declaration  of  Independence,  in  the  words 
'all  men  are  created  equal,'  was  intended  to  allude  only  to  the 
people  of  the  United  States,  to  men  of  European  birth  or 
descent,  being  white  men;  that  they  were  created  equal,  and 
hence  that  Great  Britain  had  no  right  to  deprive  them  of  their 
political  and  religious  privileges;  but  the  signers  of  that  paper 
did  not  intend  to  include  the  Indian  or  the  negro  in  the 
Declaration,  for  if  they  had,  would  they  not  have  been  bound 
to  abolish  slavery  in  every  State  and  Colony  from  that  day?" — 
Springfield,  III.,  speech,  July  ij,  1858;  Id.,  p.  139. 

The  answer  to  this  division  will  be  clearer,  and  its  perti- 
nency to  the  Christian  nation  decision  more  readily  discerned, 
by  separating  it  according  to  the  two  points  made.  For  both 
these  points — the  perversion  of  the  plain  words  of  the  Declara- 
tion, and  the  drawing  of  those  who  made  it,  into  this  perversion 
— are  equally  the  mode  of  the  Christian  nation  decision  and  its 
defenders. 


1 70  THE     RIGHTS     OF     THE     PEOPLE. 

First,  to  the  idea  that  the  men  of  the  Revolution  actually 
meant  the  words  '  'all  men' '  to  exclude  the  negro,  or  else  laid 
themselves  open  to  "universal  rebuke  and  reprobation,"  Lin- 
coln replied: — 

"  Chief  Justice  Taney,  in  his  opinion  in  the  Dred  Scott 
case,  admits  that  the  language  of  the  Declaration  is  broad 
enough  to  include  the  whole  human  family;  but  he  and  Judge 
Douglas  argue  that  the  authors  of  that  instrument  did  not 
intend  to  include  negroes,  by  the  fact  that  they  did  not  at  once 
actually  place  them  on  an  equality  with  the  whites.  Now  this 
grave  argument  comes  to  just  nothing  at  all  by  the  other  fact 
that  they  did  not  at  once,  or  ever  afterward,  actually  place  all 
white  people  on  an  equality  with  one  another.  And  this  is 
the  staple  argument  of  both  the  chief  justice  and  the  senator  for 
doing  this  obvious  violence  to  the  plain,  unmistakable  language 
of  the  Declaration. 

"I  think  the  authors  of  that  notable  instrument  intended 
to  include  all  men,  but  they  did  not  intend  to  declare  all  men 
equal  in  all  respects.  They  did  not  mean  to  say  all  were  equal 
in  color,  size,  intellect,  moral  development,  or  social  capacity. 
They  denned  with  tolerable  distinctness  in  what  respects  they 
did  consider  all  men  created  equal — equal  'with  certain  inalien- 
able rights,  among  which  are  life,  liberty,  and  the  pursuit  of 
happiness.'  This  they  said,  and  this  they  meant.  They  did 
not  mean  to  assert  the  obvious  untruth  that  all  were  actually 
enjoying  that  equality,  nor  yet  that  they  were  about  to  confer 
it  immediately  upon  them.  In  fact,  they  had  no  power  to 
confer  such  a  boon.  They  meant  simply  to  declare  the  right, 
so  that  the  enforcement  of  it  might  follow  as  fast  as  circum- 
stances should  permit." — Springfield,  III.,  Speech,  June  26, 
r857;  Id.,  pp.  47,  48. 

1  do  not  propose,  in  regard  to  this  argument  drawn  from 
the  history  of  former  times,  to  enter  into  a  detailed  examina- 
tion of  the  historical  statements  he  has  made.  I  have  the  im- 
pression that  they  are  inaccurate  in  a  great  many  instances — 
sometimes  in  positive  statement — but  very  much  more  inaccu- 
rate by  the  suppression  of  statements  that  really  belong  to  the 
history.  But  I  do  not  propose  to  affirm  that  this  is  so  to  any  very 
great  extent,  or  to  enter  into  any  very  minute  examination  of 
his  historical  statements.  I  avoid  doing  so  upon  this  princi- 
ple— that  if  it  were  important  for  me  to  pass  out  of  this  lot  in 


NATIONAL  PRECEDENT  ON   RIGHT  OF  APPEAL.  iyi 

the  least  period  of  time  possible,  and  I  came  to  that  fence,  and 
saw  by  a  calculation  of  my  known  strength  and  agility  that  I 
could  clear  it  at  a  bound,  it  would  be  folly  for  me  to  stop  and 
consider  whether  I  could  or  not  crawl  through  a  crack.  So  I 
say  of  the  whole  history  contained  in  his  essay,5  where  he  en- 
deavored to  link  the  men  of  the  Revolution  to  popular  sover- 
eignty. It  only  requires  an  effort  to  leap  out  of  it,  a  single 
bound  to  be  entirely  successful.  If  you  read  it  over  you  will 
find  that  he  quotes  here  and  there  from  documents  of  the 
revolutionary  times,  tending  to  show  that  the  people  of  the 
Colonies  were  desirous  of  regulating  their  own  concerns  in 
their  own  way.  .  .  . 

"Now,  however  this  history  may  apply,  and  whatever  of 
his  argument  there  may  be  that  is  sound  and  accurate  or  un- 
sound and  inaccurate,  if  we  can  find  out  what  these  men  did 
themselves  do  upon  this  very  question  of  slavery  in  the  Terri- 
tories, does  it  not  end  the  whole  thing?  If,  after  all  this  labor 
and  effort  to  show  that  the  men  of  the  Revolution  were  in 
favor  of  his  popular  sovereignty,  and  his  mode  of  dealing 
with  slavery  in  the  Territories,  we  can  show  that  these  very 
men  took  hold  of  that  subject,  and  dealt  with  it,  we  can  see 
for  ourselves  how  they  dealt  with  it.  It  is  not  a  matter  of 
argument  or  inference,  but  we  know  what  they  thought  about  it. 

"It  is  precisely  upon  that  part  of  the  history  of  the  country 
that  one  important  omission  is-  made  by  Judge  Douglas.  He 
selects  parts  of  the  history  of  the  United  States  upon  the  sub- 
ject of  slavery,  and  treats  it  as  the  whole.  .  .  .  There  was 
another  part  of  our  political  history,  made  by  the  very  men 
who  were  the  actors  in  the  Revolution,  which  has  taken  the 
name  of  the  'Ordinance  of '87.'  Let  me  bring  that  history 
to  your  attention.  In  1784,  I  believe,  this  same  Mr.  Jefferson 
drew  up  an  ordinance  for  the  government  of  the  country  upon 
which  we  now  stand,  or,  rather,  a  frame  or  draft  of  an  ordi- 
nance for  the  government  of  this  country,  here  in  Ohio,  our 
neighbors  in  Indiana,  us  who  live  in  Illinois,  our  neighbors  in 
Wisconsin  and  Michigan.  In  that  ordinance,  drawn  up  not 
only  for  the  government  of  that  Territory,  but  for  the  Terri- 
tories south  of  the  Ohio  River,  Mr.  Jefferson  expressly  pro- 
vided for  the  prohibition  of  slavery. 

"Judge  Douglas  says,  and  perhaps  is  right,  that  that  pro- 

5 Senator  Doug-las  had  published  an  essay  in  Harper's  Magazine,  which  is  imme- 
diately referred  to  here. 


I'/-  THE     RIGHTS     OF     THK     PKOPLK. 

vision  was  lost  from  that  ordinance.  I  believe  that  is  true. 
When  the  vote  was  taken  upon  it,  a  majority  of  all  present  in 
the  Congress  of  the  confederation  voted  for  it;  but  there  were 
so  many  absentees  that  those  voting  for  it  did  not  make  the 
clear  majority  necessary,  and  it  was  lost.  But  three  years  after 
that  the  Congress  of  the  confederation  were  together  again, 
and  they  adopted  a  new  ordinance  for  the  government  of  this 
Northwest  Territory,  not  contemplating  territory  south  of  the 
river,  for  the  States  owning  that  territory  had  hitherto  refrained 
from  giving  it  to  the  general  government;  hence  they  made 
the  ordinance  to  apply  only  to  what  the  government  owned. 
In  that,  the  provision  excluding  slavery  was  inserted  and  passed 
unanimously,  or,  at  any  rate,  it  passed  and  became  a  part  of 
the  law  of  the  land.  Under  that  ordinance  we  live.  .  . 

"Not  only  did  that  ordinance  prevail,  but  it  was  constantly 
looked  to  whenever  a  step  was  taken  by  a  new  Territory  to 
become  a  State.  Congress  always  turned  their  attention  to  it, 
and  in  all  their  movements  upon  this  subject,  they  traced  their 
course  by  that  Ordinance  of  '87.  When  they  admitted  new 
States  they  advised  them  of  this  ordinance  as  a  part  of  the 
legislation  of  the  country.  They  did  so  because  they  had 
traced  the  Ordinance  of  '87  throughout  the  history  of  the 
country.  Begin  with  the  men  of  the  Revolution,  and  go  down 
for  sixty  entire  years,  and  until  the  last  scrap  of  that  Territory 
comes  into  the  Union  in  the  form  of  the  State  of  Wisconsin, 
everything  was  made  to  conform  with  the  Ordinance  of  '87, 
excluding  slavery  from  that  vast  extent  of  country. 

"I  omitted  to  mention  in  the  right  place  that  the  Constitu- 
tion of  the  United  States  was  in  process  of  being  framed  when 
that  ordinance  was  made  by  the  Congress  of  the  Confedera- 
tion; and  one  of  the  first  acts  of  Congress  itself,  under  the  new 
Constitution  itself?  was  to  give  force  to  that  ordinance  by  put- 
ting power  to  carry  it  out  in  the  hands  of  the  new  officers 
under  the  Constitution,  in  place  of  the  old  ones,  who  had  been 
legislated  out  of  existence  by  the  change  in  the  government 
from  the  confederation  to  the  Constitution.  Not  only  so,  but 
I  believe  Indiana  once  or  twice,  if  not  Ohio,  petitioned  the 
general  government  for  the  privilege  of  suspending  that  pro- 
vision and  allowing  them  to  have  slaves.  A  report  made  by 
Mr.  Randolph,  of  Virginia,  himself  a  slaveholder,  was  directly 


6  See  pages  104,  124  this  book. 


against  it,  and  the  action  was  to  .refuse  them  the  privilege  of 
violating  the  Ordinance  of  87. 

"This  period  of  history,  which  I  have  run  over  briefly,  is, 
I 'presume,  as  familiar  to  most  of  this  assembly  as  any  other 
part  of  the  history  of  our  country.  I  suppose  that  few  of  my 
hearers  are  not  as  familiar  with  that  part  of  history  as  I  am, 
and  I  only  mention  it  to  recall  your  attention  to  it  at  this  time. 
And  hence  I  ask  how  extraordinary  a  thing  it  is  that  a  man 
who  has  occupied  a  position  on  the  floor  of  the  Senate  of  the 
United  States,  who  is  now  in  his  third  term,  and  who  looks  to 
see  the  government  of  this  whole  country  fall  into  his  own 
hands,  pretending  to  give  a  truthful  and  accurate  history  of  the 
slavery  question  in  this  country,  should  so  entirely  ignore  the 
whole  of  that  portion  of  our  history,  the  most  important  of 
all.  Is  it  not  a  most  extraordinary  spectacle  that  a  man 
should  stand  up  and  ask  for  any  confidence  in  his  statements 
who  sets  out  as  he  does  with  portions  of  history,  calling  upon 
the  people  to  believe  that  it  is  a  true  and  fair  representation 
when  the  leading  part  and  controlling  feature  of  the  whole  his- 
tory is  carefully  suppressed  ?7 

''But  the  mere  leaving  out  is  not  the  most  remarkable  fea- 
ture of  this  most  remarkable  essay.  His  proposition  is  to 
establish  that  the  leading  men  of  the  Revolution  were  for  his 
great  principle  of  nonintervention  by  the  government  in  the 
question  of  slavery  in  the  Territories,  while  history  shows  that 
they  decided,  in  the  cases  actually  brought  before  them,  in 
exactly  the  contrary  way,  and  he  knows  it.8  Not  only  did 
they  so  decide  at  that  time,  but  they  stuck'  to  it  during  sixty 
years,  through  thick  and  thin,  as  long  as  there  was  one  of  the 
revolutionary  heroes  upon  the  stage  of  political  action.  Through 
their  whole  course,  from  first  to  last,  they  clung  to  freedom. 

"And  now  he  asks  the  community  to  believe  that  the  men 
of  the  Revolution  were  in  favor  of  his  great  principle,  when 
we  have  the  naked  history  that  they  themselves  dealt  with  this 
very  subject  matter  of  his  principle,  and  utterly  repudiated  his 
principle,  acting  upon  a  precisely  contrary  ground.  It  is  as 
impudent  and  absurd  as  if  a  prosecuting  attorney  should  stand 
up  before  a  jury  and  ask  them  to  convict  A  as  the  murderer  of 
B,  while  B  was  walking  alive  before  them." — Speech,  Columbus, 
Ohio,  September,  1859;  Id. ,  pp.  4.69-4.73. 

7  See  pages  130-132  this  book. 

8  See  pages  88-108  this  book. 


174  THE     RIGHTS     OF     THE     PEOPLE. 

In  another  speech  touching  the  history  here  referred  to,  he 
closed  his  reference  with  these  words: — 

"Thus,  with  the  author  of  the  Declaration  of  Independence, 
the  policy  of  prohibiting  slavery  in  the  new  territory  origi- 
nated. Thus,  away  back  of  the  Constitution,  in  the  pure,  fresh, 
free  breath  of  the  Revolution,  the  State  of  Virginia  and  the 
National  Congress  put  that  policy  in  practice." — Peoria,  ///., 
October  16,  1854;  Id.,  p.  3. 

Secondly,  to  the  idea  that  the  Declaration  could  be  used 
by  such  interpretation  in  the  interests  of  despotism,  Lincoln 
replied: — 

"Now,  I  ask  you  in  all  soberness  if  all  these  things,  if  in- 
dulged in,  if  ratified,  if  confirmed  and  endorsed,  if  taught  to 
our  children,  and  repeated  to  them,  do  not  tend  to  rub  out 
the  sentiment  of  liberty  in  the  country,  and  to  transform  this 
government  into  a  government  of  some  other  form?9 

"Those  arguments  that  are  made,  that  the  inferior  race  are 
to  be  treated  with  as  much  allowance  as  they  are  capable  of 
enjoying;  that  as  much  is  to  be  done  for  them  as  their  condi- 
tion will  allow — what  are  these  arguments?  They  are  the 
arguments  that  kings  have  made  for  enslaving  the  people  in 
all  ages  of  the  world.  You  will  find  that  all  the  arguments  in 
favor  of  kingcraft  were  of  this  class;  they  also  bestrode  the 
necks  of  the  people,  not  that  they  wanted  to  do  it,  but  because 
the  people  were  better  off  for  being  ridden.  That  is  their 
argument,  and  this  argument  of  the  Judge  is  the  same  old  ser- 
pent that  says,  You  work,  and  I  eat;  you  toil,  and  I  will  enjoy 
the  fruits  of  it. 

'  Turn  it  whatever  way  you  will,  whether  it  come  frtfm  the 
mouth  of  a  king,  as  an  excuse  for  enslaving  the  people  of  his 

9  Another  thing  that  makes  this  discussion  on  the  Declaration  pertinent  to  the 
Christian  nation  decision  and  to  our  times,  is  the  fact  that  the  partisans  of  that  deci- 
sion have  attacked  that  other  material  principle  of  the  Declaration— governments 
derive  their  just  powers  from  the  consent  of  the  governed.  On  this,  at  Chautauqua 
Assembly,  1889,  the  president  of  the  American  Sabbath  Union  said: — 

"Governments  do  not  derive  their  just  powers  from  the  consent  of  the  governed." 

And  in  the  same  year,  in  a  religio-political  convention  in  Sedalia,  Missouri,  another 
of  the  leaders  of  that  company  said: — 

"  I  do  not  belive  that  governments  derive  their  just  powers  from  the  consent  of  the 
governed;  and  so  the  object  of  this  movement  is  to  change  that  feature  of  our  funda- 
mental law." — See  Two  Republics,  pp.  7^7,  728,  edition  of  1895. 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL.  175 

country,  or  from  the  mouth  of  men  of  one  race  as  a  reason  for 
enslaving  the  men  of  another  race,  it  is  all  the  same  old  ser- 
pent; and  I  hold,  if  that  course  of  argumentation  that  is  made 
for  the  purpose  of  convincing  the  public  mind  that  we  should 
not  care  about  this,  should  be  granted,  it  does  not  stop  with 
the  negro.  I  should  like  to  know  if,  taking  this  old  Declara- 
tion of  Independence,  which  declares  that  all  men  are  equal 
upon  principle, and  making  exceptions  to  it,  where  will  it  stop? 
If  one  man  says  it  does  not  mean  a  negro,  why  not  another 
say  it  does  not  mean  some  other  man?  If  that  Declaration  is 
not  the  truth,  let  us  get  the  statute  book  in  which  we  find  it 
and  tear  it  out.  Who  is  so  bold  as  to  do  it?  If  it  is  not  true 
let  us  tear  it  out.  [Cries  of  No!  no!]  Let  us  stick  to  it,  then 
let  us  stand  firmly  by  it,  then." —  Chicago  Speech,  July  10, 1858; 
Id.,  p.  90. 

"They  meant  to  set  up  a  standard  maxim  for  free  society, 
which  should  be  familiar  to  all,  and  referred  to  by  all.  con- 
stantly looked  to,  constantly  labored  for,  and,  even  though 
never  perfectly  attained,  constantly  approximated,  and  thereby 
constantly  spreading  and  deepening  its  influence  and  augment, 
ing  the  happiness  and  value  of  life  of  all  people  of  all  color- 
everywhere.  The  assertion  that  'all  men  are  created  equal' 
was  of  no  practical  use  in  affecting  our  separation  from  Eng- 
land; and  it  was  placed  in  the  Declaration,  not  for  that  but 
for  future  use.  Its  authors  meant  it  to  be,  as,  thank  God,  it  is 
now  proving  itself,  a  stumbling  block  to  all  those  who,  in  after 
time,  might  seek  to  turn  a  free  people  back  into  the  hateful 
paths  of  despotism.  They  knew  the  proneness  of  prosperity 
to  breed  tyrants,  and  they  meant  when  such  should  reappear 
in  this  fair  land  and  commence  their  vocation,  they  should  find 
left  for  them  at  least  one  hard  nut  to  crack." — Springfield, 
III.,  Speech,  June  26,  185? ';  Id ,  p.  48. 

"In  those  days  our  Declaration  of  Independence  was  held 
sacred  by  all,  and  thought  to  include  all;  but  now,  to  aid  in 
making  the  bondage  of  the  negro  [and  now  the  consciences 
of  all,  A.  T.  j.]  universal  and  eternal,  it  is  assailed  and  sneered 
at,  and  construed,  and  hawked  at,  and  torn,  till,  if  its  framers 
could  rise  from  their  graves,  they  could  not  at  all  recognize 
it."—  Id., p.  46. 


176  THE     RIGHTS     OF     THE     PEOPLE. 

"DICTA"  AND  "DECISION." 

Another  plea,  which,  however,  was  rather  in  the  shape  of 
an  apology  for  the  Dred  Scott  decision,  was  that  all  that  part 
against  which  the  great  objection  was  made  was  mere  "obiter 
dicta, ' ' 10  that  is,  things  said  only  by  the  way,  or  in  passing;  that 
it  was  "extra-judicial,"  and  therefore  of  no  real  force  in  law, 
and  so  there  was  no  need  of  paying  any  particular  attention  to- 
it  nor  of  raising  any  opposition  against  it.  This  plea  Lincoln 
defined  as  '  'a  little  quibble  among  lawyers  between  the  words 
'dicta'  and  'decision,'  '  n  and  replied  to  it  as  follows: — 

"I  know  the  legal  arguments  that  can  be  made, — that  after  a 
court  has  decided  that  it  cannot  take  jurisdiction  in  a  case,  it 
then  has  decided  all  that  is  before  it,  and  that  is  the  end  of  it. 
A  plausible  argument  can  be  made  in  favor  of  that  proposition ; 
but  I  know  that  Judge  Douglas  has  said  in  one  of  his  speeches 
that  the  court  went  forward,  like  honest  men  as  they  were,  and 
decided  all  the  points  in  the  case.  If  any  points  are  really 
extra  judicially  decided  because  not  necessarily  before  them, 
then  this  one  as  to  the  power  of  the  Territorial  Legislature  to 
exclude  slavery  is  one  of  them,  as  also  the  one  that  the  Mis- 
souri Compromise  was  null  and  void.  They  are  both  extra- 
judicial,  or  neither  is,  according  as  the  court  held  that  they 
had  no  jurisdiction  in  the  case  between  the  parties,  because  of 
want  of  capacity  of  one  party  to  maintain  a  suit  in  that  court. 

"I  want,  if  I  have  sufficient  time,  to  show  that  the  court 
did  pass  its  opinion;  but  that  is  the  only  thing  actually  done  in 
the  case.  If  they  did  not  decide,  they  showed  what  they  were 


10 Even  Bryce,  at  this  late  day,  sanctions  this  view  ("Am.  Com.,"  chapter  24,  par.  5 
and  note;  and  chapter  53,  par.  15,  note.).  But  however  that  may  be  as  to  the  Dred 
Scott  decision,  there  is  no  kind  of  ground  for  any  such  view  fairly  to  be  taken  as  to  the 
"Christian  nation"  decision. 

11  His  exact  words  are:  "I  undertake  to  give  the  opinion,  at  least,  that  if  the  Terri- 
tories attempt  by  any  direct  legislation  to  drive  the  man  with  his  slave  out  of  the  Terri- 
tory, or  to  decide  that  his  slave  is  free  because  of  his  being  taken  in  there,  or  to  tax 
him  to  such  an  extent  that  he  cannot  keep  him  there,  the  Supreme  Court  will  unhesi- 
tatingly decide  all  such  legislation  unconstitutional  as  long  as  that  Supreme  Court  i.s 
constructed  as  the  Dred  Scott  Supreme  Court  is.  The  first  two  things  they  have 
already  decided,  except  that  there  is  a  little  quibble  among  lawyers  between  the  words 
'dicta'  and  'decision.'  They  have  already  decided  that  the  negro  cannot  be  made  free 
l>y  territorial  legislation."—  Colinnbnx,  <">.,  Spcrch,  rXsy;  lit.,  pp.  </?5,  476. 


NATURAL  PRECEDENT  ON  RIGHT  OF  APPEAL.  177 

ready  to  decide  whenever  the  matter  was  brought  before  them. 
What  is  that  opinion?  After  having  argued  that  Congress 
had  no  power  to  pass  a  law  excluding  slavery  from  a  United 
States  Territory,  they  then  used  language  to  this  effect,  That 
inasmuch  as  Congress  itself  could  not  exercise  such  a  power,  it 
followed  as  a  matter  of  course  that  it  could  not  authorize  a 
territorial  government  to  exercise  it;  for  the  territorial  Legis- 
lature could  do  no  more  than  Congress  could  do.  Thus  it 
expressed  its  opinion  emphatically  against  the  power  of  a  ter- 
ritorial Legislature  to  exclude  slavery,  leaving  us  in  just  as  little 
doubt  upon  that  point  as  upon  any  other  point  they  really 
decided."  —  Jonesboro,  III.,  Debate,  September  15,  1858;  Id.,  pp. 


And  again  :  — 

"There  is  no  sort  of  question  that  the  Supreme  Court  has 
decided  that  it  is  the  right  of  the  slaveholder  to  take  his  slave 
and  hold  him  in  the  Territory;  and  saying  this,  Judge  Douglas 
himself  admits  the  conclusion.  He  says,  'If  this  is  so,  this 
consequence  will  follow;'  and  because  this  consequence  would 
follow,  his  argument  is,  'The  decision  cannot,  therefore,  be 
that  way  —  that  would  spoil  my  popular  sovereignty,  and  it 
cannot  be  possible  that  this  great  principle  has  been  squelched 
out  in  that  extraordinary  way.  It  might  be,  if  it  were  not  for 
the  extraordinary  consequences  of  spoiling  my  humbug.'  "  — 
Columbus,  O.  ,  Speech,  1859;  Id.  ,  p. 


IS  IT  ONLY  THEORY? 

Another  plea,  akin  to  this  '  'little  quibble,  '  '  was  that,  even 
admitting  the  points  against  which  the  opposition  was  contend- 
ing, to  be  really  a  part  of  the  decision  itself,  after  all  it  was 
merely  an  abstract  question  of  no  moment  whatever  in  any 
practical  way.  This  view  was  stated  by  Senator  Douglas 
thus:  — 

"Mr.  Lincoln  says  that  this  Dred  Scott  decision  destroys 
the  doctrine  of  popular  sovereignty,  for  the  reason  that  the 
court  has  decided  that  Congress  has  no  power  to  prohibit 
slavery  in  the  Territories,  and  hence  he  infers  that  it  would 
decide  that  the  territorial  Legislatures  could  not  probibit  slav- 
ery there.  I  will  not  stop  to  inquire  whether  the  court  will 


178  THE     RIGHTS     OF     THE     PEOPLE. 

carry  the  decision  that  far  or  not.  It  would  be  interesting  as  a 
matter  of  theory,  but  of  no  importance  in  practice. " — Springfield, 
III.,  Speech,  July  77,  1838;  Id.,  pp.  134,  135. 

'  'It  matters  not  what  way  the  Supreme  Court  may  hereafter 
decide  as  to  the  abstract  question  whether  slavery  may,  or  may 
not,  go  into  a  territory  under  the  Constitution.  .  .  .  Hence, 
no  matter  what  the  decision  of  the  Supreme  Court  may  be  on 
that  abstract  question,  etc." — Freeport,  ///.,  Debate,  August  2^, 
1858;  Id. ,  //.  213,  214. 

To  this,  Lincoln  replied  thus: — 

"He  says  this  Dred  Scott  cas£  is  a  very  small  matter  at 
most — that  it  has  no  practical  effect;  that  at  best,  or,  rather,  I 
suppose,  at  worst,  it  is  but  an  abstraction.  I  submit  that  the 
proposition  that  the  thing  which  determines  whether  a  man  is 
free  or  a  slave  is  rather  concrete  than  abstract.  I  think  you 
would  conclude  that  it  was  if  your  liberty  depended  upon  it, 
and  so  would  Judge  Douglas  if  his  liberty  depended  upon  it." 
— Springfield,  III.,  Speech,  July  ij ,  1858;  Id.,  p.  15  J. 

"A  decision  of  the  Supreme  Court  is  made,  by  which  it  is 
declared  that  Congress,  if  it  desires  to  prohibit  the  spread  of 
slavery  into  the  Territories,  has  no  constitutional  power  to  do 
so.  Not  only  so,  but  that  decision  lays  down  principles  which,  if 
pushed  to  their  logical  conclusion, — I  say  pushed  to  their 
logical  conclusion,  would  decide  that  the  constitutions  of  free 
States,  forbidding  slavery,  are  themselves  unconstitutional. 
Mark  me,  1  do  not  say  the  judges  said  this,  and  let  no  man 
say  I  affirm  the  judges  used  these  words;  but  I  only  say  it  is 
my  opinion  that  what  they  did  say,  if  pressed  to  its  logical 
conclusion,  will  inevitably  result  thus.  . 

"Take  it  just  as  it  stands,  and  apply  it  as  a  principle;  extend 
and  apply  that  principle  elsewhere;  and  consider  where  it  will 
lead  you.  .  .  .  I  say,  if  this  principle  is  established,  .  .  . 
when  this  is  done,  where  this  doctrine  prevails,  the  miners  and 
sappers  will  have  formed  public  opinion  for  the  slave  trade. 
They  will  be  ready  for  Jeff.  Davis  and  Stephens  and  other 
leaders  of  that  company  to  sound  the  bugleforthe  revival  of  the 
slave  trade  for  the  second  Dred  Scott  decision,  for  the  flood  of 
slavery  to  be  poured  over  the  free  States,  while  we  shall  be 
here  tied  down  and  helpless  and  run  over  like  sheep." — 
Columbus,  O.,  Speech,  1859;  Id*  pp.  460,  478,  480. 


NATIONAL  PRECEDENT  ON  RIGHT  OF  APPEAL.  179 

Such  were  the  main  pleas  and  the  answers  thereto,  upon  the 
merits  of  the  Dred  Scott  decision.  And  we  say  again  that 
every  one  of  these  pleas,  in  very  substance,  and  almost  in  the 
very  words,  is  now  held  and  urged  in  behalf  of  the  Christian 
nation  decision.  And  the  answers  of  Abraham  Lincoln  to  those 
pleas  in  support  of  that  decision  in  that  day,  are  precisely  our 
answers  to  these  same  pleas  in  support  of  this  decision  in  this 
our  day.  No  less  than  he  in  that  case,  do  we  oppose  this 
decision  now  and  appeal  from  it.  No  more  than  he  in  that 
case,  do  we  in  this  case  propose  to  disturb  any  right  of  prop- 
erty, create  any  disorder,  or  excite  any  mobs.  No  less  than 
he  in  that  case,  are  we  in  this  case  '  'working  on  the  plan  of 
the  founders  of  the  government, ' '  and  '  'fighting  it  upon  these 
original  principles — fighting  it  in  the  Jeffersonian,  Washing- 
tonian,-  and  Madisonian  fashion."  No  more  now  than  then 
ought  the  people  to  allow  themselves  to  be  made  helpless  and 
tied  down  and  run  over  like  sheep. 

The  people  in  that  day  arose  in  their  right  and  reversed 
that  decision,  and  thus  added  the  force  of  national  precedent  to 
that  of  national  principle  and  national  authority,  upon  the  right 
of  the  people  to  appeal  from  any  Supreme  Court  decision  touch- 
ing any  constitutional  question.  Will  the  people  in  this  our  day 
realize  the  danger  of  the  religious  despotism  which  lurks  in  this 
decision  as  did  they  in  that  day  the  danger  of  the  civil  despot- 
ism that  lay  in  that  decision,  and  again  arise  in  their  right — 
their  right  by  fundamental  principle,  by  national  authority,  and 
by  national  precedent — and  reverse  this  decision? 


CHAPTER  IX. 


THE   BUGLERS,    THE   MINERS    AND   SAPPERS. 

IT  is  certain  that  there  was  a  powerful  party  interested  in 
the  maintenance  of  the  Dred  Scott  decision  in  its  principle  of 
the  nationalization  of  slavery,  and  who  were  ready  to  push  that 
principle  to  the  utmost  extent  of  the  logic  of  it. 

It  is  certain  that  there  is  now  in  the  United  States  two 
powerful  combinations  intensely  interested  in  the  maintenance 
of  the  principle  of  the  Christian  nation  decision  nationalizing 
"  the  establishment  of  the  Christian  religion,"  and  determined 
to  push  the  force  of  that  decision  to  the  fullest  extent  of  all  the 
logic  that  its  principle  can  be  made  to  bear.  -After  the  ren- 
dering of  the  decision  of  the  Supreme  Court  that  ' '  this  is  a 
Christian  nation ' '  within  the  meaning  of  the  Constitution,  it 
were  impossible  that  there  should  not  be  at  least  two  bodies 
anxious  to  put  themselves  upon  the  nation  as  the  Christianity 
most  becoming  to  the  Christian  nation.  Let  governmental 
recognition  of  religion  be  once  established,  and  there  will 
always  be  organizations  of  religion  to  take  advantage  of  it  and 
turn  the  power  and  influence  of  it  to  their  own  aggrandizement. 
And  the  more  sects  there  are  in  the  country,  and  the  more 
worldly  these  are,  the  more  of  such  aspirants  there  will  cer- 
tainly be,  each  one  being  in  a  certain  sense  obliged  to  secure 
possession  of  the  governmental  recognition  and  power,  so  as 
to  be  safe  from  the  oppression  of  such  of  the  others  as  might 
obtain  it;  so  as  to  be  exempt,  without  persecution,  from  doing 
homage  to  such  other  one, 
(180) 


THE     BUGLERS,   THE     MINERS     AND     SAPPERS.  1 8 1 

The  first  of  these  combinations,  and  the  one  of  most  impor- 
tance practically,  is  THE  PAPACY. 

I. 

WHAT    THE    PAPACY    IS    DOING. 

In  a  previous  chapter  there  has  been  pointed  out  how  com- 
pletely the  principle  of  this  decision  is  the  papal  principle  only. 
The  Papacy  herself  sees  this,  and  is  making  great  use  of  it. 
It  would  be  surprising  if  she  did  not. 

In  the  discussions  which  led  up  to  the  making  of  the 
national  Constitution  with  the  specific  exclusion  of  religion 
from  the  notice  of  the  national  government,  it  was  not  without 
reason  that  our  fathers  pointedly  inquired,  ' '  Who  does  not 
see  that  the  same  authority  which  can  establish  Christianity, 
in  exclusion  of  all  other  religions,  may  establish  with  the  same 
ease  any  particular  sect  of  Christians  in  exclusion  of  all  other 
sects?"—  P.  98. 

They  knew  full  well  that,  as  certainly  as  '  *  Christianity ' ' 
were  established  as  the  governmental  religion,  so  certainly 
some  particular  sect  of  "Christians"  would  worm,  or  crowd, 
itself  into  the  place  of  recognition  and  authority  as  the  ( '  Chris- 
tianity" recognized  and  established,  and  this  to  the  exclusion 
of  all  other  sects,  because  it  would  be  in  some  way  decided  by 
"authority"  that  that  particular  phase  of  "  Christianity "  was 
more  in  harmony  with  the  intent  of  the  law  than  any  other. 

Thus  they  saw  that  any  recognition  of  "Christianity" 
would  inevitably  bring  forth  a  decision  of  some  kind  as  to 
"what  is  Christianity,"  and  what  form  of  the  profession  is  i 
most  entitled  to  the  name  and  the  favor  of  the  government,  as 
contemplated  in  the  act  of  establishment  or  the  form  of  recog- 
nition. And  knowing  this,  they  further  and  truly  said  that 
"it  is  impossible  for  the  magistrate  to  adjudge  the  right  of 
preference  among  the  various  sects  that  profess  the  Christian 


I  82  THE     RIGHTS     OF     THE     PEOPLE. 

faith,  without  erecting  a  claim  to  infallibility,  which  would  lead 
us  back  to  the  Church  of  Rome." — Pp.  <$6,  87. 

They  saw  that  the  domination  of  Rome  must  be  the  sure 
result  of  any  governmental  recognition  of  religion.  It  was 
clearly  the  intent  of  the  makers  of  the  national  government  to 
save  this  country  from  the  domination  of  Rome.  It  was, 
therefore,  to  accomplish  this,  as  well  as  from  love  of  the  right 
of  the  people,  that  in  their  establishment  of  the  national  Con- 
stitution they  did  it  with  the  positive  prohibition  of  any  rec- 
ognition of  religion,  and  particularly  "  the  Christian  religion." 

The  Papacy  still  lives.  She  still  lives,  and  is  as  thoroughly 
ambitious  of  governmental  power  as  she  ever  was,  and  even 
more  so,  if  such  a  thing  were  possible.  And  as  the  govern- 
ment of  the  United  States  has  done  the  very  thing  which  the 
makers  of  the  government  said  that  it  were  impossible  to  do 
without  leading  back  to  the  Church  of  Rome,  it  is  proper  to 
look  about  us  and  see  if  there  are  now  any  signs  of  this  result 
from  this  action  on  the  part  of  the  government. 

As  the  Papacy  still  lives,  as  it  is  true  that  the  Papacy 
' '  learns  much  and  forgets  nothing, ' '  and  as  it  is  her  boast  that 
she  never  changes,  it  will  be  instructive  to  glance  at  what  she 
did  once  in  such  a  case. 

WHAT  THE  CATHOLIC  CHURCH  ONCE  DID. 

In  the  beginning  of  the  fourth  century,  in  the  Roman 
Empire,  the  Catholic  Church  was  a  powerful  ecclesiastical 
organization,  the  leaders  and  managers  of  which  were  "only 
anxious  to  assert  the  government  as  a  kind  of  sovereignty  for 
themselves."  Constantine  and  Licinius,  as  joint  emperors, 
issued  the  Edict  of  Milan,  reversing  the  persecuting  edicts  of 
Diocletian,  and  granting  "liberty  and  full  freedom  to  the 
Christians  to  observe  their  own  mode  of  worship,"  granting, 
"likewise,  to  the  Christians  and  to  all,  the  free  choice  to  follow 


1  Eusebius,  "Ecclesiastical  History,"  Book  VIII,  chapter 


THE     WCEERS,    THE     MINERS     AN!)     SAPPERS.  183 

that  mode  of  worship  which  they  may  wish;"  "that  each 
may  have  the  privilege  to  select  and  to  worship  whatsoever 
divinity  he  pleases;"  and  commanding  that  the  churches  and 
church  property  which  had  been  confiscated  by  Diocletian 
should  be  restored  to  ' ( the  whole  body  of  Christians, ' '  '  'and 
to  each  conventicle  respectively." 

This  was  all  just  and  proper  enough,  and  innocent  enough, 
in  itself  and  on  its  face,  if  that  had  been  all  there  was  to  it;  but 
behind  it  there  lay  this  ecclesiastical  organization,  ambitious 
to  assert  the  government  as  a  kind  of  sovereignty  for  itself. 
This  ecclesiastical  organization,  the  Catholic  Church,  claimed 
at  that  time,  as  ever  since,  to  be  the  legitimate  and  only  true 
representative  and  depositary  of  Christianity  in  the  world. 
And  no  sooner  had  the  Edict  of  Milan  ordered  the  restoration 
of  property  to  the  Christians  than  it  was  seized  upon  by  the 
church  leaders  and  made  an  issue  by  which  to  secure  the 
imperial  recognition  and  the  legal  establishment  of  the  Catholic 
Church. 

The  rule  had  long  before  been  established  that  all  who  did 
not  agree  with  the  bishops  of  the  Catholic  Church  were  nec- 
essarily heretics,  and  not  Christians  at  all.  It  was  now  claimed 
by  the  Catholic  Church  that,  therefore,  none  such  were  entitled 
to  any  benefit  from  the  edict  restoring  property  to  the  Chris- 
tians. 

In  other  words,  the  Catholic  Church  disputed  the  right  of 
any  others  than  Catholics  to  receive  property  or  money  under 
the  Edict  of  Milan,  by  disputing  their  right  .to  the  title  of 
Christians.  And  by  this  issue  the  Catholic  Church  forced  an 
imperial  decision  as  to  who  were  Christians.  And,  under  the 
circumstances,  by  the  power  and  influence  which  she  held  and 
by  what  she  had  already  done  with  these  in  behalf  of  Con- 
stantine,  it  was  a  foregone  conclusion,  if  not  the  concerted 
plan,  that  this  decision  would  be  in  favor  of  the  Catholic  Church. 


2  Id.,  Book  X,  chapter  5. 


1 84  THE     RIGHTS     OF     THE     PEOPLE. 

Consequently,  Constantine' s  edict  to  the  proconsul,  directing 
the  restoration  of  the  property,  contained  these  words: — 

"  It  is  our  will  that  when  thou  shalt  receive  this  epistle,  if  any  of 
those  things  belonging  to  the  Catholic  Church  of  the  Christians  in  the 
several  cities  or  other  places,  are  now  possessed  either  by  the  decu- 
rions,  or  any  others,  these  thou  shalt  cause  immediately  to  be  restored 
to  their  churches.  Since  we  have  previously  determined  that  whatso- 
ever these  same  churches  before  possessed  should  be  restored  to 
them." 

Nor  was  it  enough  that  the  emperor  should  decide  that  all 
these  favors  were  for  "  the  Catholic  Church  of  the  Christians;  " 
he  was  obliged  next  to  decide  which  was  the  Catholic  Church. 
This  question  was  immediately  raised  and  disputed,  and  in  con- 
sequence an  edict  was  drawn  from  Constantine,  addressed  to 
the  same  proconsul  (of  the  province  of  Africa),  in  which  were 
these  words: — 

"It  is  my  will  that  these  men,  within  the  province  intrusted  tothee 
in  the  Catholic  Church,  over  which  Ccecilianus  presides,  who  give  their 
services  to  this  holy  religion,  and  whom  they  commonly  call  clergy, 
shall  be  held  totally  free  and  exempt  from  all  public  offices,"  etc. 

The  party  over  which  Cecilianus  presided  in  Africa  was  the 
party  which  was  in  communion  with  the  bishop  of  Rome.  As 
these  only  were  favored,  the  other  party  drew  up  a  long  series 
of  charges  against  Cecilianus,  and  sent  them  to  the  emperor, 
with  a  petition  that  he  would  have  the  case  examined  by  the 
bishops  of  Gaul.  Constantine  was  in  Gaul  at  the  time,  but 
instead  of  having  the  bishops  of  Gaul  examine  into  the  case 
alone,  he  commissioned  three  of  them  to  go  to  Rome  and  sit 
with  the  bishop  of  Rome  in  council  to  decide  the  case.  Con- 
stantine sent  a  letter,  with  copies  of  all  the  charges  and  com- 
plaints which  had  been  lodged  with  him,  and  in  this  letter  to 
the  bishop  of  Rome,  with  other  things  he  said  this: — 

"  Since  it  neither  escapes  your  diligence  that  I  show  such  regard 
for  the  holy  Catholic  Church  that  I  wish  you,  upon  the  whole,  to  leave 
no  room  for  schism  or  division.'" 


THE    BUGLERS,  THE    MINERS    AND    SAPPERS.  185 

This  council  of  course  confirmed  the  emperor's  word  that 
the  Catholic  Church  in  Africa  was  indeed  the  one  over  which 
Cecilianus  presided.  The  other  party  appealed  from  this  decis- 
ion and  petitioned  that  another  and  larger  council  be  called  to 
examine  the  question.  Another  council  was  called,  composed 
of  almost  all  the  bishops  of  Constantine' s  dominions.  This 
council  likewise  confirmed  the  emperor's  word  and  the  decision 
of  the  former  council.  Then  the  opposing  party  appealed  from 
the  decision  of  the  council  to  the  emperor  himself.  After  hear- 
ing their  appeal,  he  sustained  the  action  of  the  councils  and 
reaffirmed  his  original  decision.  Then  the  opposing  party 
rejected  not  only  the  decisions  of  the  councils  but  the  decision  of 
the  emperor  himself. 

Then  Constantine  addressed  a  letter  to  Cecilianus,  bestow- 
ing more  favor  upon  what  he  now  called  ' '  the  legitimate  and 
most  holy  Catholic  religion,"  and  empowering  him  to  use  the 
civil  power  to  compel  the  opposing  party — the  Donatists — to 
submit.  This  portion  of  his  letter  is  in  the  following  words: — 

"Constantine  Augustus  to  Cecilianus,  bishop  of  Carthage: 

"As  we  have  determined  that  in  all  the  provinces  of  Africa, 
Numidia  and  Mauritania,  something  should  be  granted  to  certain  min- 
isters of  the  legitimate  and  most  holy  Catholic  religion  to  defray  their 
expenses,  I  have  given  letters  to  Ursus,  the  most  illustrious  lieutenant 
governor  of  Africa,  and  have  communicated  to  him  that  he  shall  pro- 
vide to  pay  to  your  authority  three  thousand  folles  [about  one  hun- 
dred thousand  dollars].3  .  ;  . 

"And  as  I  have  ascertained  that  some  men,  who  are  of  no  settled 
mind,  wished  to  divert  the  people  from  the  most  holy  Catholic  Church, 
by  a  certain  pernicious  adulteration,  I  wish  thee  to  understand  that  I 
have  given,  both  to  the  proconsul  Anulinus  and  to  Patricius,  vicar- 
general  of  the  prefects,  when  present,  the  folio  wing  injunctions:  That, 
among  all  the  rest,  they  should  particularly  pay  the  necessary  atten- 
tion to  this,  nor  should  by  any  means  tolerate  that  this  should  be  over- 


8  The  Catholic  Church  gets  nearly  four  hundred  thousand  dollars  annually,  from 
the  national  treasury  of  the  United  States  to-day. 


1 86  THK    RK;HTS    OF    THK    PKOIM.K. 

looked.  Wherefore,  if  than  seest  any  of  flic sc  men  persevering  in  this 
madness,  thon  shalt,  without  any  hesitancy,  proceed  to  the  aforesaid 
judges,  and  report  it  to  them,  that  /hey  may  animadvert  upon-  /hem,  as  1 
commanded  them,  when  present" 

Thus,  no  sooner  was  it  decided  what  was  ' '  the  legitimate 
and  most  holy  Catholic  Church,"  than  the  civil  power  was 
definitely  placed  at  the  disposal  of  that  church,  with  positive 
instructions  to  use  that  power  in  compelling  conformity  to  the 
new  imperial  religion.  Persecution  was  begun  at  once.  The 
Donatist  bishops  were  driven  out,  and  Constantine  commanded 
that  their  churches  should  be  delivered  to  the  Catholic  party. 
Nor  was  this  done  at  all  peacefully.  ' '  Each  party  recriminated 
on  the  other;  but  neither  denies  the  barbarous  scenes  of  mas- 
sacre and  license  which  devastated  the  African  cities.  The 
Donatists  boasted  of  their  martyrs;  and  the  cruelties  of  the 
Catholic  party  rest  on  their  own  admission;  they  deny  not, 
they  proudly  vindicate,  their  barbarities;  '  Is  the  vengeance  of 
(jod  to  be  defrauded  of  its  victims?'  they  cried." — Milman, 
History  of  Christianity,  Book  III,  chapter  i ,  paragraph  5  from 
the  end. 

And  the  government  by  becoming  a  partisan  had  lost  the 
pointer  to  keep  the  peace.  The  civil  power,  by  becoming  a 
party  to  religious  controversy,  had  lost  the  power  to  prevent 
civil  violence  between  religious  factions. 

Nor  was  this  thing  long  in  coming.  It  all  occurred  within 
less  than  four  years.  The  Edict  of  Milan  was  issued  in  the 
month  of  March,  A.  D.  313.  Before  that  month  expired  the 
decision  was  rendered  that  the  imperial  favors  were  for  the 
Catholic  Church  only.  In  the  autumn  of  the  same  year — 313 
—the  first  council  sat  to  decide  which  was  the  Catholic  Church. 
In  the  summer  of  314  sat  the  second  council  on  the  same  ques- 
tion. And  in  3 1 6  the  decree  was  sent  to  Cecilianus  empower- 
ing him  to  distribute  that  money  to  the  ministers  of  "the  legit- 
imate and  most  holy  Catholic  religion, ' '  and  to  use  the  civil 


THE     BUGLERS,   THE     MIXERS     AM)     SAri'EKs.  187 

power  to  force-  the  Donatists  to  submit  to  the  decision  of  the 
councils  and  the  emperor. 

The  Edict  of  Milan,  March,  313,  named  "the  whole  body 
of  Christians "  as  the  beneficiaries,  without  any  qualification 
or  any  sectarian  designation.  Before  the  expiration  of  that 
month,  the  provisions  of  the  edict  were  confined  to  ' '  the 
Catholic  Church  of  the  Christians"  alone.  In  the  autumn  of 
the  same  year,  when  the  emperor  wrote  to  the  bishop  of  Rome, 
appointing  the  first  council,  he  defined  the  established  church 
as  "  the  holy  Catholic  Church."  The  following  summer,  314, 
when  he  called  the  second  council,  he  referred  to  the  doctrine 
of  the  Catholic  Church  as  embodying  the  "most  holy  religion." 
And  when  it  had  been  decided  which  party  represented  this 
"  most  holy  religion,"  then  in  316  his  letter  and  commission 
to  Cecilianus  defined  it  as  ' '  the  legitimate  and  most  holy  Cath- 
olic religion." 

Nor  was  this-  all.  While  this  was  going  on,  also  about  the 
year  314,  the  first  edict  in  favor  of  Sunday  was  issued,  though 
it  was  blended  with  ' '  Friday. ' '  It  ordered  that  on  Friday 
and  on  Sunday  ' '  no  judicial  or  other  business  should  be  trans- 
acted, but  that  God  should  be  served  with  prayers  and  suppli- 
cations, and  in  321  Friday  observance  was  dropped  and  Sun- 
day alone  was  exalted  by  the  famous  Sunday-rest  law  of 
Constantine;  all  in  furtherance  of  the  ambition  of  the  ecclesias- 
tics to  assert  the  government  as  a  kind  of  sovereignty  for  them- 
selves. In  323,  by  the  direct  and  officious  aid  of  the  Catholic 
Church,  Constantine  succeeded  in  defeating  Licinius  and  mak- 
ing himself  sole  emperor.  No  sooner  was  this  accomplished 
than  the  religious  liberty  assured  to  ' '  the  Christians  ' '  by  the 
Edict  of  Milan,  like  the  provisions  of  the  same  edict  restoring 
confiscated  property  to  the  Christians,  was  by  a  public  and 
express  edict  limited  to  Catholics  alone.  This  portion  of  that 
decree  runs  as  follows: — 


1 88  THE     RIGHTS     OF    THE     PEOPLE. 

"Victor  Constantinus  Ma.viinus  Augustus,  to  tlie  heretics: — 

"Understand  now,  by  this  present  statute,  ye  Novatians,  Valentin- 
ians,  Marcionites,  Paulians,  ye  who  are  called  Cataphrygians,  and  all 
ye  who  devise  and  support  heresies  by  means  of  your  private  assem- 
blies, with  what  a  tissue  of  falsehood  and  vanity,  with  what  destructive 
and  venomous  errors,  your  doctrines  are  inseparably  interwoven;  so 
that  through  you  the  healthy  soul  is  stricken  with  disease,  and  the 
living  becomes  the  prey  of  everlasting  death.  .  .  . 

"Forasmuch,  then,  as  it  is  no  longer  possible  to  bear  with  your 
pernicious  errors,  we  give  warning  by  this  present  statute  that  none 
of  you  henceforth  presume  to  assemble  yourselves  together.  We 
have  directed,  accordingly,  that  you  should  be  deprived  of  all  the 
houses  in  which  you  are  accustomed  to  hold  your  assemblies;  and  our 
care  in  this  respect  extends  so  far  as  to  forbid  the  holding  of  your 
superstitious  and  senseless  meetings,  not  in  public  merely,  but  in  any 
private  house  or  place  whatsoever.  Let  those  of  you,  therefore,  who 
are  desirous  of  embracing  the  true  and  pure  religion,  take  the  far  bet- 
ter course  of  entering  the  Catholic  Church,  and  uniting  with  it  in  holy 
fellowship,  whereby  you  will  be  enabled  to  arrive  at  the  knowledge  of 
the  truth.  .  .  . 

"  It  is  an  object  worthy  of  that  prosperity  which  we  enjoy  through 
the  favor  of  God,  to  endeavor  to  bring  back  those  who  in  time  past 
were  living  in  the  hope  of  future  blessing,  from  all  irregularity  and 
error,  to  the  right  path,  from  darkness  to  light,  from  vanity  to  truth, 
from  death  to  salvation.  And  in  order  that  this  remedy  may  be 
applied  with  effectual  power,  we  have  commanded  (as  before  said), 
that  you  be  positively  deprived  of  every  gathering  point  for  your 
superstitious  meetings;  I  mean  all  the  houses  of  prayer  (if  such  be 
worthy  of  the  name)  which  belong  to  heretics,  and  that  these  be  made 
over  without  delay  to  the  Catholic  Church;  that  any  other  places  be 
confiscated  to  the  public  service,  and  no  facility  whatever  be  left  for 
any  future  gathering;  in  order  that  from  this  day  forward  none  of  your 
unlawful  assemblies  may  presume  to  appear  in  any  public  or  private 
place.  Let  this  edict  be  made  public." 

Thus  in  less  than  eleven  years  from  the  issuing  of  the  Edict 
of  Milan,  the  Catholic  Church  stood  in  full  and  exclusive  pos- 
session of  the  authority  of  the  empire  both  in  the  rights  of 
property  and  the  right  to  worship  under  the  profession  of 
Christianity,  and  with  a  specific  and  direct  commission  to  use 


THE    BUGLERS,   THE     MINERS     AND     SAPPERS.  189 

that  power  and  authority  to  compel  the  submission  of  ' '  her- 
etics. ' '  Thus  was  made  the  Papacy — the  beast  of  Revelation 
13:  i-io — and  all  that  ever  came  in  its  career  from  that  day  to 
this  has  been  but  the  natural  and  inevitable  growth  of  the 
power  and  the  prerogatives  which  were  then  possessed  and 
claimed  by  the  Catholic  Church. 

And  it  a/ I  came  from  the  Edict  of  Milan  bestowing  gov- 
ernmental favors  upon  "the  Christians.''1  No  man  can  fairly 
deny  that  in  the  Edict  of  Milan  and  the  religio-political  intrigue 
that  lay  behind  it,  there  was  contained  the  whole  Papacy.  No 
man  can  successfully  deny  that  the  Edict  of  Milan,  though 
appearing  innocent  enough  upon  its  face,  contained  the  whole 
Papacy,  or  that  the  things  that  followed  in  the  ten  years  up  to 
323,  which  we  have  sketched,  were  anything  else  than  the  log- 
ical and  inevitable  development  of  the  evil  that  lay  wrapped  up 
in  that. 

So  much  for  the  experience  of  the  Papacy.  And  in  view 
of  this  experience  we  may  here  ask  a  question  that  is  worthy 
of  the  most  serious  consideration  by  the  American  people.  If 
a  thing  appearing  so  just  and  innocent  as  does  the  Edict  of 
Milan  could  so  easily  be  made  by  the  Catholic  Church  of  that 
day  to  produce  such  a  world  of  mischief  in  so  short  a  time,  and 
be  a  curse  to  the  world  forever  after;  then,  under  the  hand  of 
the  Papacy  as  at  this  day,  what  must  be  the  result  of  this  deci- 
sion of  the  Supreme  Court  of  the  United  States  which  has  not, 
in  any  sense,  any  appearance  of  justice  or  innocence? 

THE  CATHOLIC  CHURCH  TO-DAY. 

It  is  proper  now  to  inquire  whether  there  are  any  evidences 
of  a  purpose  to  act  now  in  this  case  as  she  did  in  the  former. 
And  in  response  to  this  inquiry  it  must  be  said  that  there 
exists  a  series  of  facts  of  which  the  very  least  that  can  be  said 
is  that  it  is  dangerously  suggestive.  These  facts  shall  be  set 
down  here,  without  any  note  or  comment,  in  the  order  of  their 


I  go  THE     RIGHTS     OF     THE     PEOiMj;. 

occurrence  from  the  date  of  the  Supreme  Court  "Christian 
nation"  decision,  up  to  the  latest  dates  before  this  book  goes 
to  press.  Here  they  are: — 

1.  February  29,    1892,   the  Supreme  Court  of  the  United 
States  declared  it  to  be  the  ' '  meaning  ' '  of  the  Constitution  of 
the  United  States  that  it  is  "  the  voice  of  the  entire ' '  people  of 
this  nation,  speaking  in  "  organic  utterances,"  that  "this  is  a 
religious  nation,"  and  that  "  this  is  a  Christian  nation." 

2.  July  n,    1892,   there  was  published  in  this  country,  in 
the  New  York  Sun,  a  letter  from  the  Vatican  announcing  the 
plans  of  Leo  XIII.  respecting  the  United  States,  and  through 
this  the  world.     In  this  letter  it  said: — 

"What  the  church  has  done  in  the  past  for  others,  she  will  now 
do  for  the  United  States.  .  .  .  Like  all  intuitive  souls,  he  hails  in 
the  United  American  States,  and  in  their  young  and  flourishing 
church,  the  source  of  new  life  for  Europeans.  He  wants  America  to 
be  powerful,  in  order  that  Europe  may  regain  strength  from  borrow- 
ing a  rejuvenated  type.  .  .  .  If  the  United  States  succeed  in  solv- 
ing the  many  problems  that  puzzle  us,  Europe  will  follow  her  exam- 
ple, and  this  outpouring  of  light  will  mark  a  date  in  the  history  not 
only  of  the  United  States,  but  of  ALL  HUMANITY." 

3.  In  October,   1892,   Francis   Satolli,   Archbishop  of  Le- 
ponto,  was  sent  to  this  country  as  the  personal  representative 
of  the  pope,  ostensibly  to  represent  the  pope' s  interest  in  the 
Columbian  Exposition,  but  in  reality  to  be  permanent  apostolic 
delegate  at  the  capital  of  the  nation,  with  assurance  under  the 
seal  of  "  the  fisherman's  ring"  that  whatever  he  does  shall  be 
confirmed  by  the  pope. 

4.  September  5,  1893,  at  the  World's  Catholic  Congress, 
Chicago,  this  same  Satolli  delivered  to  ' '  the  Catholics  of  Amer- 
ica" the  following  message  from  Leo  XIII. : — 

"  In  the  name  of  Leo  XIII.  I  salute  the  great  American  republic; 
and  I  call  upon  the  Catholics  of  America  to  go  forward,  in  one  hand 
bearing  the  book  of  Christian  truth,  and  in  the  other  the  Constitution 
of  the  United  States.  .  .  .  Bring  your  fellow-countrymen,  bring 


THE    BUGLERS,   THE     MINERS     AND     SAPPERS.  IQI 

your  country -,  into  immediate  contact  with  that  great  secret  of  blessed- 
ness— Christ  and  his  church.  .  .  .  Here  you  have  a  country 
which  will  repay  all  effort  not  merely  tenfold,  but  aye!  a  hundred- 
fold. And  this  no  one  understands  better  than  the  immortal  Leo. 
And  he  charges  me,  his  delegate,  to  speak  out  to  America  words  of 
hope  and  blessing,  words  of  joy.  Go  forward  !  in  one  hand  bearing 
the  book  of  Christian  truth — the  Bible — and  in  the  other  the  Consti- 
tution of  the  United  States." 

5.  A   few   days   later,    September    24,    1893,   Prof.   Thos. 
O' Gorman,   of  the  Catholic  University,   Washington,   D.   C., 
having   been  announced  in  the  published  program  to  read  a 
paper  at  the  World's  Parliament  of  Religions  on  "  The  Rela- 
tion of  the  Catholic  Church  to  America, ' '  changed  the  title  to 
' '  The  Relation  of  Christianity  to  America, ' '  and  declared  that 
"by  right  of  discovery  and   possession,  dating  back  almost 
nine  hundred  years,  America  is  Christian;"  cited  evidences  in 
proof  of  '  'an  acquaintance  between  America  and  the  church  in 
times  when  the  only  Christianity  in  existence  was  Catholic;'' 
and  declared  that  this  is  '  'a  nation  that  shall  find  its  perfection 
in  Catholic  Christianity. ' ' 

6.  October  18,  19,  1893,  the  jubilee  of  Cardinal  Gibbons' 
was  celebrated  at   Baltimore.     The  night  of .  the  i8th  Arch- 
bishop Ireland  delivered  a  panegyric  in  which  he  exclaimed:- — 

"  I  preach  the  new,  the  most  glorious  crusade.  Church  and  age! 
Unite  them  in  mind  and  heart,  in  the  name  of  humanity,  in  the  name 
of  God.  Church  and  age!  .  .  .  Monsignor  Satolli.  the  church, 
and  the  age.  Rome  is  the  church;  America  is  the  age. ' ' 

And  at  the  banquet  the  night  of  the  igth,  the  archbishop 
again  spoke  to  the  following  purpose : — 

"  I  do  not  know  whether  or  not  you  appreciate  the  full  value  of 
the  union  you  see  typified  here  to-night, — the  union  of  the  Catholic 
Church  and  America;  the  fraternity  between  the  church  and  the  non- 
Catholics  of  the  nation.  The  Vice  President  of  the  United  States 
comes  here  and  takes  his  seat  alongside  the  cardinal.  The  spirit  of 
fraternity  between  church  and  state  thus  typified,  is  the  result  of  the 
work  of  our  American  Cardinal." 


IQ2  THE     RIGHTS     OF     THE     PEOPLE. 

7.  September  21,  1894,  a  dispatch  announcing  the  return 
of  Bishop  Keane  from  Rome  gave  the  following  words  of  an 
interview  with  him: — 

"The  policy  of  the  pope,  in  view  of  the  late  overtures  in  Italy,  is 
the  union  of  the  church  with  the  great  democratic  powers  of  the  future 
— that  is,  America  and  France.  This  is  his  hope,  and  toward  it  all  his 
remarkable  energies  are  bent." 

Three  days  later,  September  24,  the  newspaper  dispatches 
stated  that  Bishop  Keane  was  ' '  the  bearer  of  a  rescript  from 
Pope  Leo  XIII.,"  of  which  the  import  was  the  following: — 

"The  papal  rescript  elevates  the  United  States  to  the  first  rank  as  a 
Catholic  nation.  Heretofore  this  country  has  stood  before  the  church 
as  a  missionary  country.  It  had  no  more  recognition  officially  at 
Rome  than  had  China.  .  .  .  By  the  new  rescript  the  country  is 
freed  from  the  propaganda  and  is  declared  to  be  a  Catholic  country. 
.  .  .  The  importance,  not  only  to  Catholics,  but  to  all  citizens  of 
the  United  States,  of  this  radical  change  in  the  relations  to  Rome  of 
the  church  in  America,  can  scarcely  be  overestimated." 

8.  A  letter  from  the  Vatican,  dated  October  14,  1894,  to 
the  New  York  Sun,  republished   in   the    Catholic   Standard 
(Philadelphia)  of  November  3,  says:— 

"The  United  States  of  America,  it  can  be  said  without  exaggera- 
tion, are  the  chief  thought  of  Leo  XIII.  in  the  government  of  the 
Roman  and  universal  Catholic  Church;  for  he  is  one  of  the  choice  intel- 
lects of  the  Old  World  who  are  watching  the  starry  flag  of  Washington 
rise  to  the  zenith  of  the  heavens.  A  few  days  ago,  on  receiving  an 
eminent  American,  Leo  XIII.  said  to  him,  '  But  the  United  States  are 
the  future;  we  think  of  them  incessantly/  .  .  .  This  ever-ready 
sympathy  has  its  base  in  the  fundamental  interests  of  the  holy  see, 
in  a  peculiar  conception  of  the  part  to  be  played  and  the  position  to  be 
held  by  the  church  and  the  Papacy  in  the  times  to  come.  .  .  . 
That  is  why  Leo  XIII.  turns  all  his  soul,  full  of  ideality,  to  what  is 
improperly  called  his  American  policy.  It  should  be  rightly  called  his 
Catholic  universal  policy." 

9.  In  his  encyclical  of  January  6,  1895,  to  the  hierarchy 
in  America,  Leo  XIII.  himself  speaks,  and  says: — 


THE    BUGLERS,  THE    MINERS     AND     SAPPERS.  193 

"  We  highly  esteem  and  love  exceedingly  the  young  and  vigorous 
American  nation,  in  which  we  plainly  discern  latent  forces  for  the 
advancement  alike  of  civilization  and  of  Christianity."  "The  fact 
that  Catholicity  with  you  is  in  good  condition,  nay,  is  even  enjoying  a 
prosperous  growth,  is  by  all  means  to  be  attributed  to  the  fecundity 
with  which  God  has  endowed  his  church;  .  .  .  but  she  would 
bring  forth  more  abundant  fruits,  if,  in  addition  to  liberty,  she  enjoyed 
the  favor  of  the  laws  and  the  patronage  of  the  public  authority" 

10.  The   Catholic  Mirror  (Baltimore)  of  March  2,    1895, 
reported  a  sermon  by  ' '  Father' '  Lyons,  of  that  city,  delivered 
Sunday  evening,  February  24,  1895,  in  which  he  said: — 

"  It  is  strange  that  a  rule  which  requires  a  Supreme  Court  to  give 
final  decisions  on  disputed  points  in  our  Constitution,  should  be 
abused  and  slandered  when  employed  by  the  Catholic  Church.  Citi- 
zens and  others  may  read  the  Constitution,  but  they  are  not  allowed  to 
interpret  it  for  themselves,  but  must  submit  to  the  interpretation  given 
by  the  Superior  [Supreme  (?)]  Court.  The  Bible  is  the  constitution 
of  the  Catholic  Church,  and  while  all  are  exhorted  to  read  this  divine 
Constitution,  the  interpretation  of  its  true  meaning  must  be  left  to  the 
Superior  Court  of  the  church  founded  by  Christ.  The  decision  of 
our  federal  Supreme  Court  is  final;  the  decision  of  the  superior  court 
of  the  church  is  final  also,  and,  in  virtue  of  the  divine  prerogative  of 
inerrancy  granted  the  church,  infallible.  The  church  has  not,  does 
not,  and  cannot,  permit  the  violation  of  God's  commandments  in 
any  case  whatsoever." 

11.  March  n,    1895,  the  New  York  Advertiser  printed  a 
dispatch  of  March  10,  from  San  Francisco,  as  follows: — 

"SAN  FRANCISCO,  March  10. 

"  Private  advices  received  here  give  an  interesting  and  important 
communication  from  Mgr.  Satolli  to  officials  in  Guatemala,  concern- 
ing that  country's  following  the  course  of  Nicaragua  in  sending  to 
Rome  an  envoy  extraordinary  and  minister  plenipotentiary. 

"In  the  course  of  the  document  reference  is  made  as  to  the  pro- 
priety under  the  United  States  Constitution  of  official  relations  between 
Washington  and  Rome,  and  an  interpretation  given  of  that  feature  of 
the  Constitution  relative  to  the  separation  of  Church  and  State.  Mgr. 
Satolli 's  letter  was  written  while  negotiations  were  pending  about  four 
months  ago.  It  refers  at  length  to  difficulties  in  church  administra- 


194  THE     RIGHTS     OF     THE     PEOPLE. 

tion  in  Guatemala,  and  suggests  that  certain  changes  desired  by  the 
government  should  be  accompanied  by  an  equivalent  of  serious  advan- 
tage to  render  less  burdensome  the  condition  of  the  church  in  Gua- 
temala. The  document  then  adds: — 

"  l  The  condition  of  the  Catholic  Church  in  the  United  States,  in 
whose  Constitution  was  inserted  the  article  of  separation  of  the  State 
from  any  religious  sect,  cannot  escape  our  consideration.  I  might 
almost  say  it  causes  no  surprise.  If  up  to  date  no  official  relations  exist 
between  the  government  and  the  holy  see,  it  is  because  the  great 
majority  of  the  population  is  anti-Catholic.  In  the  meantime  the 
church  here  is  attaining  possibly  greater  development  and  liberty 
than  in  other  States.' 

"It  is  stated  that  this  is  the  first  time,  so  far  as  is  known,  that 
Mgr.  Satolli's  mission  has  been  extended  outside  of  spiritual  ques- 
tions and  has  dealt  with  governmental  subjects." 

Now  can  any  man  read  over  this  string  of  facts  and  deny 
that  there  is  being  carried  on  by  the  Papacy  in  the  United 
States  a  fixed  purpose  to  crowd  herself  into  place  in  this  nation 
as  the  ( '  Christianity  "  of  "  this  Christian  nation  ' '  ?  Can  any- 
one fail  to  see  that  from  the  Supreme  Court's  interpretation  of 
the  Constitution  to  mean  that  "  this  is  a  Christian  nation,"  she 
has  caught  the  cue,  and  not  only  holds  to  that  as  true,  but  has 
begun  to  take  upon  herself  the  interpretation  of  the  Constitu- 
tion as  it  relates  to  "  Christianity,  general  Christianity"  ? 

There  is  another  fact  to  be  set  down  here  which  will  make 
this  point  yet  more  distinct.  It  is  this:  In  the  Catholic  World 
for  the  month  of  September,  1871,  there  was  printed  a  lead- 
ing article,  in  which  the  Constitution  of  the  United  States  was 
referred  to  in  the  following  words: — 

''As  it  is  interpreted  by  the  liberal  and  sectarian  journals  that  are 
doing  their  best  to  revolutionize  it,  and  is  beginning  to  be  interpreted 
by  no  small  portion  of  the  American  people,  or  is  interpreted  by  the 
Protestant  principle,  so  widely  diffused  among  us,  .  .  .  we  do  not 
accept  it,  or  hold  it  to  be  any  government  at  all,  or  as  capable  of  per- 
forming any  of  the  proper  functions  of  government;  and  if  it  continues 
to  be  interpreted  by  the  revolutionary  principles  of  Protestantism,  it 
is  sure  to  fail.  .  .  .  Hence  it  is,  we  so  often  sav  that  if  the  Amer- 


THE    BUGLERS,   THE     MINERS     AND     SAPPERS.  195 

ican  republic  is  to  be  sustained  and  preserved  at  all,  it  must  be  by 
the  rejection  of  the  principle  of  the  Reformation,  and  the  acceptance 
of  the  Catholic  principle  by  the  American  people." — P.  736. 

Contrast  that  now  with  Leo's  command  by  Satolli  "  to  the 
Catholics  of  America  "  to  "go  forward ' '  on  their  ' '  hundred- 
fold" rewarded  mission,  "bearing  in  one  hand  the  book  of 
Christian  truth — the  Bible — and  in  the  other  the  Constitution 
of  the  United  States ;  ' '  and  inquire,  What  has  caused  this 
change  of  the  attitude  of  Rome  toward  the  Constitution  ? 

The  principle  upon  which  the  Constitution  was  founded  in 
its  total  separation  of  religion  from  the  notice  of  the  national 
government,  was  definitely  and  intentionally  the  Protestant 
principle.  In  the  discussions  which  led  up  to  the  making  of 
the  Constitution  as  it  reads  in  this  respect,  and  in  the  discus- 
sions upon  the  Constitution  in  the  conventions  which  made  it, 
we  have  seen  that  this  point  was  especially  dealt  with  and  the 
Protestant  principle  was  the  one  chosen  and  made  the  princi- 
ple of  the  Constitution.  In  the  documents  of  that  time,  and 
which  are  an  essential  part  of  the  history  of  the  Constitution, 
this,  we  have  also  seen,  was  the  crucial  point  considered,  and 
the  Protestant  principle  was  made  the  principle  of  the  Consti- 
tution. In  fact,  it  was  plainly  said  not  only  that  "  it  is  impos- 
sible for  the  magistrate  to  adjudge  the  right  of  preference 
among  the  various  sects  which  profess  the  Christian  faith,  with- 
out erecting  a  claim  to  infallibility  which  would  lead  us  back 
to  the  Church  of  Rome"  but  it  was  also  said  that  "  to  judge 
for  ourselves,  and  to  engage  in  the  exercise  of  religion  agree- 
ably to  the  dictates  of  our  own  consciences,  is  an  unalienable 
right  which,  upon  the  principles  on  which  the  gospel  was  first 
propagated  and  THE  REFORMATION  FROM  POPERY  CARRIED 
ON,  can  never  be  transferred  to  another. ' ' 

Therefore  it  is  the  undeniable  truth  of  the  only  history  on 
the  question,  that  the  Constitution  of  the  United  States  was 

founded  upon  the  Protestant  principle.      And  while  it  was  held 
13  % 


Ig6  THE     RIGHTS     OF     THE     PEOPLE. 

so,  no  Catholic  was  ever  commanded  by*  any  pope  to  take  that 
Constitution  in  one  hand  and  the  Bible  in  the  other  for  any 
purpose  under  the  sun.  On  the  contrary,  they  openly  declared 
that  so  long  as  the  Constitution  was  hejd  to  -that  principle 
Catholics  did  ' '  not  accept  it, ' '  nor  hold  this  government  ' '  to 
be  any  government  at  all. ' ' 

But  as  soon  as  the  Supreme  Court  of  the  United  States 
had  interpreted  the  Constitution  by  the  papal  principle — the 
principle  of  "the  establishment  of  the  Christian  religion" 
as  soon  as  the  Supreme  Court  thus  rejected  "  the  principle  of 
the  Reformation,"  and  accepted  "  the  Catholic  principle" - 

1.  Then  it  was,  and  not  till  then,  that  there  was  published 
to  the  United  States  the  purpose  of  Leo  XIII.,  that  what  the 
church  has  done  for  other  nations  she  will  now  do  for  the 
United  States. 

2.  Then  it  was,  and  not  till  then,  that  Leo   XIII.,  pope, 
sent   his  permanent  apostolic  delegate  here  in  his  name,    to 
4  4  call  upon   the  Catholics  of  America  to  go  forward,  in  one 
hand  bearing  the  book  of  Christian  truth  and  in  the  other  the 
Constitution  of  the   United  States,"  upon  their  hundred-fold 
rewarded  mission  to  bring  this  "country  into  immediate  con- 
tact with  the  Church  "  of  Rome. 

3.  Then  it  was  that,  in  the  World's  Parliament  of  Reli- 
gions,   Professor  O' Gorman,  for  the  Catholic  Church,  claimed 
this  country  as  Catholic,  and  which  "  must  find  its  perfection  in 
Catholic  Christianity. 

4.  Then  it  was  that  Archbishop  Ireland  could  proudly  point 
out  the  union  of  the  Catholic  Church  and  the  United  States 
typified   in  the  Vice  President  sitting  at  the  right  hand  of  the 
cardinal. 

5.  Then  it  was  that  it  could  be  announced  as  ' '  the  policy 
of  the  pope,"   "toward  which  all  his  remarkable  energies  are 
bent, ' '  to  unite  ' 4  the  church  and  America. ' ' 

6.  Then  it  was  that  Leo  XIII.  could  officially  declare  the 


THE     BUGLERS,   THE     MINERS     AND     SAPPERS.  197 

United  States  to  be  **a  Catholic  country,"  and  elevate  it  "to 
the  first  rank  as  a  Catholic  nation. ' ' 

7.  Since  that  it  is  that  the  United  States  has  become  "  the 
chief  thought"  in  "the  government  of  the  Roman  and  uni- 
versal Catholic  Church,"  in  the  carrying  out  of  "  his  Catholic 
universal  policy. 

8.  Then  it  was  that  Leo  himself  could  openly  call  for  "  the 
favor  of  the  laws  and  the  patronage  of  the  public  authority  ' '  to 
the  Catholic  Church. 

9.  Then  it  was,  and   merely  the  consequence,  too,  that  the 
Papacy  could  set  forth  the  doctrine  that  in  interpreting  the 
Constitution  ' '  the  decision  of  the  Supreme  Court  is  final, ' '  and 
that  the  people  "  may  read  the  Constitution,  but  they  are  not 
allowed   to  interpret  it,  but  must  submit  to  the  interpretation 
given  by  the  Supreme  Court. ' ' 

10.  And  thus  it  is  that  Satolli  can  now  take  it  upon  himself 
to  interpret  the  Constitution  in  its  new  relationship  to  religion, 
and  set  forth  that  the  Constitution  in  its  separation  of  govern- 
ment and  religion  meant  only  the  "separation  of  the  State  from 
any  religious  SECT  "  — the  very  doctrine  of  the  Christian  nation 
court  and  its  decision. 

As  it  is  certainly  nothing  else  than  the  Catholic  Bible, 
which  Leo  through  Satolli  has  commanded  the  Catholics  of 
America  to  "  take  in  one  hand,"  so  certainly  also  is  it  nothing 
else  than  the  Catholic  Constitution  of  the  United  States  that 
he  has  commanded  them  to  take  in  the  other  hand.  As  "so 
long  as  that  Constitution  was  interpreted  by  the  Protestant 
principle  the  Catholics  did  not  accept  it, ' '  and  now  they  are 
all  commanded  to  accept  it  and  use  it,  equally  with  the  Catho- 
lic Bible,  in  their  mission  to  bring  this  country  into  immediate 
contact  with  the  Papacy,  it  follows  inevitably  that  to  the 
satisfaction  of  the  Papacy  that  Constitution  has  been  interpreted 
according  to  the  papal  principle.  And  as  they  themselves  say 
that  the  Supreme  Court  is  the  interpreter  of  the  Constitution, 


198  THE     RIGHTS     OF     THE     PEOPLE. 

and  that  its  interpretation  is  final,  this  proves  conclusively  that 
the  decision  of  the  Supreme  Court  of  the  United  States  inter- 
preting the  Constitution  to  mean  that  this  is  a  Christian  nation, 
is  the  cause  of  this  change  in  the  attitude  of  the  Papacy  toward 
the  Constitution,  and  is  theYoundation  of  this  series  of  facts  in 
the  course  of  the  Papacy  in  crowding  itself  upon  the  country 
as  the  ' '  Christianity  ' '  of  this  ' '  Christian  nation. ' ' 

Thus  does  it  stand  as  clear  as  though  it  were  in  letters  of 
fire  that  in  its  decision  that  "  this  is  a  Christian  nation,"  the 
Supreme  Court  of  the  United  States  accomplished,  to  the  sat- 
isfaction of  the  Papacy,  precisely  the  thing  that  the  Papacy  had 
long  demanded,  viz.,  "the  rejection  of  the  principle  of  the 
Reformation,  and  the  acceptance  of  the  Catholic  principle,"  in 
the  interpretation  of  the  national  Constitution. 

Thus,  in  principle,  the  work  of  our  governmental  fathers 
has  been  undone.  The  barrier  which  they  set  up  against  the 
nation's  being  led  back  to  the  Church  of  Rome  has  been 
broken  down,  and  that  church  has  already  entered  upon  the 
consequential  task  of  leading  the  nation  back  to  that  iniquitous 
goal. 

The  all-important  question  now  is,  Will  the  American  peo- 
ple receive,  or  support,  or  submit  to,  this  ' '  rejection  of  the 
principle  of  the  Reformation  and  the  acceptance  of  the  Catho- 
lic principle  ' '  as  the  principle  of  the  interpretation  of  the  Con- 
stitution of  the  United  States  ? 

II. 

WHAT    PROTESTANTISM    IS    DOING. 

The  other  combination  which  is  determined  to  push  the 
1 '  Christian  nation ' '  decision  to  the  fullest  extent  of  the  logic 
of  it,  is  THE  coMiiiXED  PROTESTANTISM  of  the  country. 

Probably  the  reader  has  already  asked  himself,  What  is 
Protestantism  doing  all  this  time  ?  Well,  Protestantism,  to 
be  true  to  its  name  and  vital  principles,  ought  with  one  voice  to 


THE     BUGLERS,   THE     MINERS     AND     SAPPERS.  199 

be  protesting  against  this  Christian  nation  decision  in  every 
conceivable  shape.  For  the  *  celebrated  Protest  which  gave  to 
the  Reformation  the  title  of  Protestantism  is  decidedly  against 
it:— 

"The  principles  contained  in  the  celebrated  Protest  of  the  I9th  of 
April,  1529,  constitute  the  very  essence  of  Protestantism.  Now  this 
Protest  opposes  two  abuses  of  man  in  matters  of  faith;  the  first  is  the 
intrusion  of  the  civil  magistrate;  and  the  second,  the  arbitrary  authority 
of  the  church.  Instead  of  these  abuses  Protestantism  sets  the  power 
of  conscience  above  the  magistrate,  and  the  authority  of  the  word  of 
God  above  the  visible  church.  In  the  first  place,  it  rejects  the  civil 
power  in  divine  things,  and  says  with  the  apostles  and  prophets,  'We 
must  obey  God  rather  than  man.'  In  the  presence  of  Charles  the 
Fifth  it  uplifts  the  crown  of  Jesus  Christ." — D"1  Aubigne  History  of 
the  Reformation,  Hook  XIII,  chapter  6,  par.  18. 

This  is  what  Protestantism  ought  to  be  doing  now  in  this 
case,  but  the  fact  is  that,  instead  of  this,  that  which  stands  for 
Protestantism  in  this  country  is  the  most  persistent  caller  for 
the  intrusion  of  the  civil  magistrate  in  matters  of  faith;  and  is 
no  less  strenuous  in  its  assertion  of  the  arbitrary  authority 
of  the  church,  than  the  Papacy  itself.  And  in  all  this  that 
which  stands  for  Protestantism  in  this  country  is  the  greatest 
aid  that  the  Papacy  has  in  her  mischievous  purposes  upon  the 
country.  From  the  day  that  the  decision  of  the  Supreme 
Court  was  made  public  and  obtainable,  the  leaders  of  ' '  Protes- 
tantism ' '  in  the  country  have  been  using  it  for  all  that  it  could 
be  made  to  be  worth,  to  crowd  upon  the  government  the  rec- 
ognition and  maintenance  of  ' '  the  Christian  religion. ' ' 

For  twenty-nine  years  there  had  been  an  organized  effort 
by  professed  Protestants  to  have  the  Christian  religion  estab- 
lished as  the  national  religion  by  a  constitutional  amendment. 
Beginning  in  1863  this  organization  had  gathered  to  itself  in 
close  alliance  the  Woman's  Christian  Temperance  Union 
(1886),  the  Prohibition  party  (1887),  the  American  Sabbath 
Union  (1888),  and  the  Young  People's  Society  of  Christian 


2OO  THE     RIGHTS     OF     THE     PEOPLE. 

Endeavor;  so  that  when  (in  1892)  the  decision  was  published 
that  "this  is  a  Christian  nation,"  and  that  this  is  the  meaning 
of  the  Constitution  as  it  is,  without  any  amendment,  there  was 
this  whole  combination  ready  to  accept  it  and  glad  to  use  it  to 
further  their  purposes.4 

Undoubtedly  the  very  first  use  that  was  ever  made  of  the 
decision,  outside  of  the  case  at  bar,  was  when,  in  the  month  of 
April,  1892,  the  president  of  the  American  Sabbath  Union 
took  it  in  his  hand  and  went  before  committees  of  the  United 
States  Senate  and  House  of  Representatives,  recited  its  "  argu- 
ment," and  demanded  the  closing  of  the  World's  Fair  on  Sun- 
day by  Congress,  ' '  because  this  is  a  Christian  nation. ' ' 

The  Pearl  of  Days,  the  official  organ  of  the  American  Sab- 
bath Union,  May  7,  1892,  declared  that  this  decision — 

'  Establishes  clearly  the  fact  that  our  government  is  Christian. 
This  decision  is  vital  to  the  Sunday  question  in  all  its  aspects,  and 
places  that  question  among  the  most  important  issues  now  before  the 
American  people.  .  .  .  And  this  important  decision  rests  upon 
the  fundamental  principle  that  religion  is  imbedded  in  the  organic 
structure  of  the  American  government — a  religion  that  recognizes, 
and  is  bound  to  maintain,  Sunday  as  a  day  for  rest  and  worship." 

The  Christian  Statesman,  always  the  official  organ  of  tin- 
National  Reform  Association,  and  then  the  mouthpiece  of  the 
whole  combination,  in  the  issue  of  May  21,  1892,  said: — 

"  '  Christianity  is  the  law  of  the  land.'     'This  is  a  Christian  nation.' 
—  U.  S.  Supreme  Court,   February  29,  1892.     The  Christian  church, 


4  In  this  the  many  sects  of  popular  Protestantism  are  acting  strictly  together.  For 
there  is  sufficient  antagonism  between  Protestantism  and  Catholicism  to  give  to  all  the 
divisions  of  Protestantism  a  form  of  unity,  in  opposition  to  the  designs  of  the  Papacy 
upon  the  country.  It  is  true  that  the  Protestant  combination  were  willing  to  join 
hands,  and  did  so,  with  the  Catholics,  to  secure  their  aid  in  getting  the  government 
committed  to  religion.  But  this  was  done  with  the  idea  that  the  governmental  power 
should  be  controlled  by  the  Protestants  when  it  should  be  obtained.  Now,  however, 
that  the  thing  has  been  done,  and  the  "  Protestants"  see  Rome  pushing  herself  to  the 
front  everywhere  and  taking  control  of  all,  the}'  are  crying  loudly  against  "the 
encroachments  of  Rome."  This,  though,  is  nothing  else  than  the  same  old  cry  of  "Stop, 
thief,"  for,  as  will  be  seen,  they  are  doing  their  utmost  to  carry  off  all  the  spoil  for 
themselves.  For  a  full  history  of  this  combination  see  "  Two  Republics,"  pp.  699-732. 


THE    BUGLERS,  THE    MINERS    AND    SAPPERS.  2OI 

therefore,  has  rights  in  this  country.  Among  these  is  the  right  to  one 
day  in  seven  protected  from  the  assaults  of  greed,  the  god  of  this 
world,  that  it  may  be  devoted  to  worship  of  the  God  of  heaven  and 
earth." 

And  in  preparation  for  Thanksgiving  day  the  same  year, 
the  Christian  Statesman  of  November  19,  1892,  came  out 
with  the  following,  which  tells  all  of  that  part  of  the  story  that 
needs  to  be  told.  We  print  it  just  as  it  there  appeared,  titles 
and  all: — 

CHRISTIAN  POLITICS. 


THE   SUPREME    COURT   DECISION. 


THE   GREATEST   OCCASION   FOR   THANKSGIVING. 


[Department  edited  by  Wm.  Wier,  Washington,  Pa.,  District  Secretary  of  the  National 
Reform  Association.] 

"  '  This  is  a  Christian  nation.'  That  means  Christian  government, 
Christian  laws,  Christian  institutions,  Christian  practices,  Christian 
citizenship.  And  this  is  not  an  outburst  of  popular  passion  or  preju- 
dice. Christ  did  not  lay  his  guiding  hand  there,  but  upon  the  calm, 
dispassionate  supreme  judicial  tribunal  of  our  government.  It  is  the 
weightiest,  the  noblest,  the  most  tremendously  far-reaching  in  its  con- 
sequences of  all  the  utterances  of  that  sovereign  tribunal.  And  that 
utterance  is  for  Christianity,  for  Christ.  '  A  Christian  nation! '  Then 
this  nation  is  Christ's  nation,  for  nothing  can  be  Christian  that  does 
not  belong  to  him.  Then  his  word  is  its  sovereign  law.  Then  the 
nation  is  Christ's  servant.  Then  it  ought  to,  and  must,  confess, 
love,  and  obey  Christ.  All  that  the  National  Reform  Association 
seeks,  all  that  this  department  of  Christian  politics  works  for,  is  to  be 
found  in  the  development  of  that  royal  truth,  'This  is  a  Christian 
nation.'  It  is  the  hand  of  the  second  of  our  three  great  departments 
of  national  government  throwing  open  a  door  of  our  national  house, 
one  that  leads  straight  to  the  throne  of  Christ. 

"  Was  there  ever  a  Thanksgiving  day  before  that  called  us  to  bless 
our  God  for  such  marvelous  advances  of  our  government  and  citizen- 
ship toward  Christ  ? 

;<  'O  sing  unto  the  Lord  a  new  song,  for  he  hath  done  marvelous 
things;  his  right  hand  and  his  holy  arm  hath  gotten  him  the  victory. 
Sing  unto  the  Lord  with  the  harp  and  the  voice  of  a  psalm.' 

"WILLIAM  WEIR." 


202  THE     RIGHTS     OF    THE     PEOPLE. 

With  these  views  of  the  decision,  they  made  a  determined 
onslaught  upon  Congress  to  secure  definite  national  legislation 
in  behalf  of  religion,  using  the  Sunday  closing  of  the  World's 
Fair  as  the  means  by  which  to  obtain  the  recognition  of  the 
Christian  religion  on  the  part  of  Congress.  Finding  other 
methods  inadequate  to  accomplish  their  purpose  soon  enough 
to  please  them,  they  resorted  to  open  threats  of  political  perdi- 
tion to  all  in  Congress  who  should  refuse  to  do  their  will. 
These  threats  were  so  offensive  that  both  Senator  Sherman  and 
Senator  Vest  on  the  floor  of  the  Senate  rebuked  them  as  an 
abuse  of  the  right  of  petition.  A  sample  of  these  threatening 
petitions,  which  were  sent  up  to  Congress  from  the  churches 
all  over  the  country,  is  the  following,  sent'  up  by  certain  Pres- 
byterian Churches  in  New  York.  It  reads  thus: — 

"  Resolvedt  That  we  do  hereby  pledge  ourselves  and  each  other,  that 
we  will  from  this  time  henceforth  refuse  to  vote  for  or  support  for  any 
office  or  position  of  trust,  any  member  of  Congress,  either  senator  or 
representative,  who  shall  vote  for  any  further  aid  of  any  kind  to  the 
World's  Fair  except  on  conditions  named  in  these  resolutions."  5 

This  effort  was  successful.  Congress  yielded  to  the  demand, 
and  enacted  the  required  legislation,  and  this,  too,  distinctly 
as  religions  legislation,  setting  up  Sunday  by  national  law  as 
M  the  Christian  sabbath." 

The  record  of  that  transaction  is  as  follows.  In  the  Con- 
gressional Record^i July  10,  1892,  page  6614,  is  this  report:— 

"MR.  QUAY. — On  page  122,  line  13,  after  the  word  'act'  I  move 
to  insert: — 

4 '  'And  that  provision  has  been  made  by  the  proper  authority  for 
the  closing  of  the  Exposition  on  the  sabbath  clay.' 

"  The  reasons  for  the  amendment  I  will  send  to  the  desk  to  be  read. 
The  secretary  will  have  the  kindness  to  read  from  the  book  of  law  I 
send  to  the  desk,  the  part  inclosed  in  brackets. 

"THE  VICE  PRESIDENT. — The  part  indicated  will  be  read. 

"The  secretary  read  as  follows: — 


•  Congressional  Record^  May  25,  1892,  p.  5144. 


THE     BUGLERS,   THE     MINERS     AND     SAPPERS.  203 

"  '  Remember  the  Sabbath  day  to  keep  it  holy.  Six  days  shalt  thou 
labor  and  do  all  thy  work;  but  the  seventh  day  is  the  Sabbath  of  the 
Lord  thy  God;  in  it  thou  shalt  not  do  any  work,  thou,  nor  thy  son, 
nor  thy  daughter,  thy  manservant,  nor  thy  maidservant,  nor  thy 
cattle,  nor  thy  stranger  that  is  within  thy  gates;  for  in  six  days  the 
Lord  made  heaven  and  earth,  the  sea,  and  all  that  in  them  is,  and 
rested  the  seventh  day;  wherefore  the  Lord  blessed  the  Sabbath  day, 
and  hallowed  it.'  ' 

The  foregoing  is  all  that  was  said  or  done  in  rela  tion  to  the 
question  that  day.  The  next  legislative  day,  however,  the 
question  was  taken  up  and  discussed.  The  debate  was  opened 
by  Senator  Mariderson,  of  Nebraska.  And  in  the  Record  of 
July  12,  pages  6694,  6695,  6701,  we  read. as  follows: — 

"The  language  of  this  amendment  is  that  the  Exposition  shall  be 
closed  on  the  'sabbath  day.'  I  submit  that  if  the  senator  from  Penn- 
sylvania desires  that  the  Exposition  shall  be  closed  upon  Sunday,  this 
language  will  not  necessarily  meet  that  idea.  .  .  . 

"The  word  'sabbath  day'  simply  means  that  it  is  a  rest  day,  and 
it  may  be  Saturday  or  Sunday,  and  it  would  be  subject  to  the  discre- 
tion of  those  who  will  manage  this  Exposition  whether  they  should 
close  the  Exposition  on  the  last  day  of  the  week,  in  conformity  with 
that  observance  which  is  made  by  the  Israelites  and  the  Seventh-day 
Baptists,  or  should  close  it  on  the  first  day  of  the  week,  generally 
known  as  the  Christian  sabbath.  It  certainly  seems  to  me  that  this 
amendment  should  be  adopted  by  the  senator  from  Pennsylvania, 
and,  if  he  proposes  to  close  this  Exposition,  that  it  should  be  closed 
on  the  first  day  of  the  week,  commonly  called  Sunday.  .  .  . 

"Therefore  I  offer  an  amendment  to  the  amendment,  which  I  hope 
may  be  accepted  by  the  senator  from  Pennsylvania,  to  strike  out  the 
words  '  Exposition  on  the  sabbath  day,'  and  insert  '  mechanical  por- 
tion of  the  Exposition  on  the  first  day  of  the  week,  commonly  called 
Sunday.'  .  .  . 

"  MR.  QUAY. — I  will  accept  the  modification  so  far  as  it  changes 
the  phraseology  of  the  amendment  proposed  by  me  in  regard  to  des- 
ignating the  day  of  the  week  on  which  the  Exposition  shall  be  closed. 

"THE  VICE  PRESIDENT. — The  senator  from  Pennsylvania  accepts 
the  modification  in  part,  but  not  in  whole.  .  .  . 

"  MR.  HARRIS. — Let  the  amendment  of  the  senator  from  Pennsyl- 
vania, as  modified,  be  reported. 


204  THE     RIGHTS     OF     THE     PEOPLE. 

"THE  VICE  PRESIDENT. — It  will  be  again  reported. 

"THE  CHIEF  CLERK.— On  page  122,  line  13,  after  the  word  fact* 
it  is  proposed  to  amend  the  amendment  of  the  committee  by  inserting: 

"  'And  that  provision  has  been  made  by  the  proper  authority  for 
the  closing  of  the  Exposition  on  the  first  day  of  the  week,  commonly 
called  Sunday.'  " 

This  amendment  was  afterward  further  amended  by  the 
insertion  of  the  proviso  that  the  managers  of  the  Exposition 
should  sign  an  agreement  to  close  the  Fair  on  Sunday  before 
they  could  receive  any  of  the  appropriation;  but  this  which 
we  have  given  is  the  material  point. 

All  of  this  the  House  confirmed  in  its  vote  accepting  the 
Senate  amendments.  Besides  this,  the  House  had  already, 
on  its  own  part,  by  a  vote  of  131  to  36,  adopted  Sunday  as 
the  "Christian  sabbath,"  and  by  a  vote  of  149  to  1 1  explicitly 
rejected  the  Sabbath  itself.  Indeed,  the  way  the  matter  came 
up,  the  House  by  this  vote  practically  decided  that  the  seventh 
day  is  not  the  Sabbath.  See  Congressional  Record,  pro- 
ceedings of  May  25,  26,  1892. 

Such  is  the  official  record;  now  let  us  study  the  principle. 
The  makers  of  the  Constitution  said  that  "it  is  impossible  for 
the  magistrate  to  adjudge  the  right  of  preference  among  the 
various  sects  professing  the  Christian  faith  without  erecting  a 
claim  to  infallibility  which  would  lead  us  back  to  the  Church  of 
Rome." 

The  first  thing  to  be  noticed  in  this  record  is  that  Congress 
did  precisely  this  thing — it  did  adjudge  the  right  of  preference 
among  sects  that  profess  the  Christian  faith.  The  Seventh- 
day  Baptists  and  their  observance  of  the  seventh  day  as  the 
Sabbath  of  the  commandment  quoted  were  definitely  named 
in  contrast  with  those  who  observe  ' '  the  first  day  of  the  week, 
generally  known  as  the  Christian  Sabbath,"  with  reference  to 
the  commandment  quoted.  And  the  preference  was  adjudged 
in  favor  of  the  latter. 

Now  the  Seventh-day  Baptists  are  a  sect  professing  the 


THE     BUGLERS,    THK     MINERS     AND     SAPPERS.  2O5 

Christian  faith.  The  original  Sabbath  commandment  was 
quoted  word  for  word  from  the  Scriptures.  The  words  of 
that  commandment,  as  they  stand  in  the  proceedings  of  Con- 
gress, say  "the  seventh  day  is  the  Sabbath."  The  Seventh- 
day  Baptists,  a  sect  professing  the  Christian  faith,  observe  the 
very  day — the  seventh  day — named  in  the  scripture  quoted  in 
the  Record.  There  are  other  sects  professing  the  Christian 
faith  who  profess  to  observe  the  Sabbath  of  this  same  com- 
mandment by  keeping  "  the  first  day  of  the  week,  commonly 
called  Sunday,"  and  hence  it  is  that  that  day  is  "generally 
known  as  the  Christian  sabbath."  These  facts  were  known 
to  Congress,  and  were  made  a  part  of  the  record.  Then  upon 
this  statement  of  facts  as  to  the  difference  among  sects  pro- 
fessing the  Christian  faith,  touching  the  very  religious  observ- 
ance taken  up  by  Congress,  the  Congress  did  deliberately  and 
in  set  terms  adjudge  the  right  of  preference  between  these 
sects  professing  the  Christian  faith.  Congress  did  adjudge  the 
right  of  preference  in  favor  of  those  sects  which  observe  ' '  the 
first  day  of  the  week,  generally  known  as  the  Christian  sab- 
bath," as  against  the  plainly  named  sect  which  observes  the 
clay  named  in  the  commandment  which  Congress  quoted  from 
the  Bible.  Thus  the  Congress  of  the  United  States  did  the 
very  thing  which  the  fathers  of  the  nation  declared  it  ' '  impos- 
sible "  to  do  "without  erecting  a  claim  to  infallibility,  which 
would  lead  us  back  to  the  Church  of  Rome." 

Let  us  follow  this  proceeding  a  step  or  two  further,  and  see 
how  certainly  it  does  lead  to  Rome.  From  the  official  record 
it  is  as  plain  as  anything  can  be  that  the  Congress  of  the 
United  States,  in  its  official  capacity,  did  take  it  upon  itself  to 
interpret  the  Scripture.  It  did  in  legislative  action  put  an 
interpretation  upon  the  commandment  of  God.  Congress 
quoted  the  commandment  bodily,  which  from  God  commands 
the  observance  of  the  Sabbath  day,  and  which  definitely  names 
the  day — the  seventh  day — to  be  observed.  Congress  then 


206  THE     RIGHTS     OF     THE     PEOPLE. 

declared  that  the  word  "  sabbath  day  "  "  means  "  so  and  so, 
and  that  it  ' '  may  be ' '  one  day  or  another,  ' '  Saturday  or 
Sunday, ' '  and  upon  this,  did  decide  which  day  it  should  be, 
namely,  "the  first  day  of  the  week,  commonly  called  Sunday." 
This  is  as  clearly  an  interpretation  of  the  Bible  as  was  ever 
made  on  earth. 

How,  then,  does  this  interpretation  stand  as  respects  the 
testimony  of  the  Bible  itself?  Let  the  word  witness:  "When 
the  Sabbath  was  past ,  Mary  Magdalene,  and  Mary  the  mother 
of  James,  and  Salome,  had  bought  sweet  spices,  that  they 
might  come  and  anoint  him.  And  very  early  in  the  morning, 
the  first  day  of  the  week,  they  came  unto  the  sepulcher  at  the 
rising  of  the  sun."  Mark  16:1,2.  '  Thus  the  plain  word  of 
God  says  that  "the  Sabbath  was  past"  before  the  first  day  of 
the  week  came  at  all — yes,  before  even  the  ' '  very  early ' '  part 
of  it  came.  But,  lo!  the  Congress  of  the  United  States  offi- 
cially decides  that  the  Sabbath  is  the  first  day  of  the  week. 
Now,  when  the  word  of  God  plainly  says  that  the  Sabbath  is 
bast  before  the  first  day  of  the  week  comes,  and  yet  Congress 
says  that  the  first  day  of  the  week  is  the  Sabbath,  which  is 
right  ? 

Nor  is  the  word  of  God  indefinite  as  to  what  this  distinction 
refers.  Here  is  the  word  as  to  that:  "  That  day  [the  day  of 
the  crucifixion]  was  the  preparation,  and  the  Sabbath  drew  on. 
And  the  women  also,  which  came  with  Him  from  Galilee,  fol- 
lowed after,  and  beheld  the  sepulcher,  and  how  His  body  was 
laid.  And  they  returned,  and  prepared  spices  and  ointments; 
and  rested  the  Sabbath  day  according  to  the  commandment. 
Now  upon  the  first  day  of  the  week,  very  early  in  the  morn- 
ing, they  came  unto  the  sepulcher,  bringing  the  spices  which 
they  had  prepared,  and  certain  others  with  them."  Luke 
23:54-56;  24:1.  Here  it  is  plainly  shown  that  the  Sabbath 
day  according  to  the  commandment  and  the  first  clay  of  the 
week  are  two  separate  and  distinct  days  entirely.  And  yet 
Congress  gravely  defines  that  "the  Sabbath  day  "  "maybe 


THE     BUGLERS,   THE     MINERS     AND     SAPPERS.  2OJ 

one  or  the  other ' ' !  The  word  of  God  plainly  says  that  the 
Sabbath  day  according  to  the  commandment  is  past  before  the 
first  day  of  the  week  comes  at  all.  And  yet  Congress  declares 
that  the  first  day  of  the  week  is  itself  the  Sabbath!  Which  is 
right  ?  Is  the  Lord  able  to  say  what  he  means  ?  or  is  it  essen- 
tial that  his  commandments  shall  be  put  through  a  course  of 
congressional  procedure  and  interpretation  in  order  that  his 
meaning  shall  reach  the  people  of  the  United  States?  And, 
further,  are  not  the  people  of  the  United  States  capable  of 
finding  out  for  themselves  what  the  meaning  of  the  word  of 
God  is  ?  or  is  it  so  that  it  is  necessary  that  Congress  should  be 
put  between  God  and  the  people,  so  as  to  insure  to  them  the 
true  and  divine  meaning  of  his  word  ? 

Whether  these  questions  be  answered  one  way  or  the  other, 
it  is  certain  that  this  is  precisely  the  attitude  which  has  been 
assumed  by  the  Congress  of  the  United  States.  Whatever 
men  may  believe,  or  whatever  men  may  say,  as  to  the  right  or 
the  wrong  of  this  question,  there  is  no  denying  the  fact  that 
Congress  has  taken  upon  itself  to  interpret  the  Scripture  for 
the  people  of  the  United  States.  This  is  a  fact.  It  has  been 
done.  Then  where  is  the  difference  between  this  assumption 
and  that  of  the  other  pope  f  The  Roman  pope  assumes  the 
prerogative  of  interpreting  the  Scripture  for  the  people  of  the 
whole  world.  Congress  has  assumed  the  prerogative  of  inter- 
preting the  Scripture  for  the  people  of  the  United  States. 
Where  is  the  difference  in  these  claims — except,  perhaps,  in 
this,  that  whereas  the  claim  of  the  Roman"  pope  embraces  the 
whole  world,  the  claim  of  this  congressional  pope  embraces 
only  the  United  States.  There  is  not  a  shadow  of  difference 
in  principle.6 


6  And  yet  there  is  hardly  room  for  even  this  distinction,  because  this  interpretation 
by  Congress  was  intended  to  include,  and  to  be  offeree  upon,  all  the  nations  that  took 
part  in  the  World's  Fair,  and  these  were  expected  to  be  all  the  nations  of  the  world. 
So  that,  practically,  the  two  claims  are  so  nearly  alike  that  it  is  only  another  illustration 
of  the  truth  that  there  is  no  possibility  of  measuring  degrees  in  the  respective  claims 
of  rival  popes.  There  are  no  degrees  in  infallibility  anyhow.  That  the  Fair  was  not 
closed  on  Sunday  out  of  respect  to  this  interpretation,  does  not  alter  the  fact  that  Con- 
gress did  interpret  the  commandment  of  God. 


208  THE     RIGHTS     OF     THE     PEOPLE. 

Thus  the  very  first  step  lands  Congress  and  the  country  decid- 
edly upon  Roman  ground;  and  the  next  step,  which  will  certainly 
be  taken  sooner  or  later,  will  lead  to  the  domination  of  the 
Church  of  Rome  itself.  For,  note:  This  thing  was  crowded 
upon  Congress  by  the  church  combination,  professedly  Protes- 
tant. It  was  their  view,  their  interpretation,  of  the  Scripture 
that  was  adopted  by  Congress,  and  put  into  the  law.  In  other 
words,  these  professed  Protestant  churches  had  enough  ' '  influ- 
ence ' '  upon  Congress  to  secure  the  decision  of  this  question  in 
their  favor.  And  as  soon  as  it  was  done,  they  gladly  and  loudly 
proclaimed  that  "this  settles  the  sabbath  question."  Now, 
all  questions  between  Catholics  and  these  Protestants,  even,  are 
not  entirely  settled.  One  of  these,  for  instance,  is  this  very 
question  of  Sunday  observance — not,  indeed,  whether  it  shall 
be  observed,  but  how  it  shall  be  observed.  Let  this  or  any 
other  question  be  disputed  between  them,  and  all  the  Catholic 
Church  has  now  to  do  is  to  bring  enough  ' '  influence ' '  to  bear 
upon  Congress  to  get  the  question  decided  in  her  favor,  and 
there  you  have  it  !  The  -whole  nation  is  then  delivered  bodily 
over  into  subjection  to  Rome. 

And  when  it  shall  have  been  done,  no  Protestant  who  has, 
or  has  had,  anything  to  do  with  this  Sunday-law  movement,  can 
ever  say  a  word.  For  if  the  action  of  Congress  settles  a  reli- 
gious question  when  it  is  decided  in  their  favor,  they  can  never 
deny  that  such  action  as  certainly  settles  a  religious  question 
when  it  is  decided  in  favor  of  the  Catholic  Church.  If  they 
accept,  and  require  others  to  accept,  such  a  decision  of  civil 
power  when  it  suits  them,  they  must  likewise  accept  such  a 
decision  when  it  suits  the  Catholics.  And  this  other  thing  will 
as  certainly  come  as  that  this  has  already  come.  And  thus 
the  government  and  people  of  the  United  States  will  have  been 
delivered  into  the  hands  of  Rome  by  this  blind  procedure  of 
apostate  Protestantism.  That  which  our  fathers  feared,  and 
which  they  supposed  they  had  forever  prevented,  will  have 
come. 


THE     BUGLERS,   THE     MINERS     AND     SAPPERS.  2OQ 

The  decisive  step  toward  this  certain  consummation  has  been 
taken  by  the  combined  "  Protestantism  "  of  the  country  in  this 
successful  demand  upon  the  United  States  that  Congress  should 
interpret  the  Scripture,  decide  a  religious  dispute,  and  ' '  settle' ' 
a  religious  question.  And  this,  too,  was  done  by  the  use,  and 
as  the  consequence,  of  the  Supreme  Court  decision  that  ' '  this 
is  a  Christian  nation,"  which  made  the  Constitution  acceptable 
to  the  Papacy  by  "  the  rejection  of  the  principle  of  the  Refor- 
mation and  the  acceptance  of  the  Catholic  principle ' '  as  the 
' '  meaning ' '  of  the  Constitution  of  the  United  States. 

This,  we  repeat,  the  professed  Protestantism  of  the  country 
has  done  upon  the  basis,  and  in  the  use,  of  the  ' '  Christian 
nation"  decision.  In  their  whole  course  in  this  matter,  when 
any  doubt  or  opposition  was  shown,  they  never  failed  to  sound 
the  merits  of  this  Supreme  Court  decision — this  was  final  and 
settled  all  questions.  The  leading  Methodist  paper  of  the 
country,  the  New  York  Christian  Advocate,  in  referring  to  the 
discussion  of  the  question  in  Congress,  said: — 

"Every  wtterance  upon  this  subject  was  in  harmony  with  a  late 
decision  of  the  United  States  Supreme  Court  whereby  it  is  to  be  for- 
ever regarded  as  a  settled  principle  that  this  is  a  Christian  nation." 

And  now  the  Papacy  takes  up  the  strain,  and  also  declares 
that  a  decision  of  the  Supreme  Court  interpreting  the  Consti- 
tution "  is  final. "  And  just  as  soon  as  the  Catholics  can  so 
' '  influence  ' '  Congress  as  to  comply  with  the  pope' s  published 
wish  that  that  church  shall  enjoy  "the  favor  of  the  laws  and 
the  patronage  of  the  public  authority,"  then,  with  the  doctrine 
already  fastened  upon  the  country  by  Protestants  that  this 
Supreme  Court  decision  is  final,  the  whole  nation  will  find  itself 
fastened  under  the  domination  of  Rome,  whose  decisions  by 
the  same  rule  ' 4  are  also  final  and  infallible. ' '  Thus,  and  cer- 
tainly, is  the  nation  being  steadily  drawn  toward  Rome  by  the 
violation  of  the  fundamental  principle  which  our  fathers  estab- 
lished— by  the  doing  of  that  thing  which  they  truthfully  declared 


210  THE     RIGHTS     OF     THE     PEOPLE. 

impossible  to  be  done  ' '  without  erecting  a  claim  to  infallibility, 
which  would  lead  us  back  to  the  Church  of  Rome." 

And  this  is  what  the  "Protestantism"  of  the  country  is 
doing  in  this  crisis — doing  all  it  possibly  can  to  aid  and  confirm 
the  monstrous  evil.  This  universal  and  insidious  SUNDAY-LAW 
ISSUE  in  the  hands  of  professed  Protestants,  is  the  ' (  miner  and 
sapper  ' '  in  this  siege  of  the  national  power  by  Rome.  And  so 
diligently  have  they  plied  themselves  in  this  and  other  like 
things  that  we  have  not  space  to  mention,  that  all  is  on  the 
verge  of  being  ready  for  Rome  to  sound  the  bugle,  spring  the 
mine,  and,  in  the  confusion,  seize  the  very  citadel  of  the  national 
power,  and  revive  the  old-time  religious  despotism  with  all  its 
horrors,  while  the  people  of  the  United  States  will  find  them- 
selves here  tied  down,  and  helpless,  and  run  over  like  sheep. 

There  is  another  line  of  evidence  that  develops  yet  more 
clearly  the  present  crisis,  and  makes  more  emphatic  the  fact 
that  this  crisis  is  imminent.  This  is  presented  in  the  next 
chapter. 


CHAPTER  X. 

THE  SUNDAY-LAW  MOVEMENT  IN  THE  FOURTH  CENTURY,  AND 
ITS  PARALLEL  IN  THE  NINETEENTH. 

A  TITLE  for  this  chapter  equally  good  with  the  above 
would  be,  The  Making  of  the  Papacy  and  the  Perfect  Likeness 
to  It;  for  the  professed  Christian  church  did  once  obtain 
control  of  the  civil  power,  and  by  that  power  compelled  all  to 
do  her  bidding.  This  was  the  making  and  the  working  of  the 
Papacy.  It  is  well  to  see  how  that  was  done,  and  to  know  the 
means  by  which  it  was  done.  And  if  we  shall  see  the  same 
things  being  done  over  again,  in  our  day  and  country,  we  shall 
know  what  it  implies.  In  2  Thess.  2  :  1-4,  7,  Paul  wrote: — 

"  Now  we  beseech  you,  brethren,  by  the  coming  of  our  Lord  Jesus 
Christ,  and  by  our  gathering  together  unto  him,  that  ye  be  not  soon 
shaken  in  mind,  or  be  troubled,  neither  by  spirit,  nor  by  word,  nor 
by  letter  as  from  us,  as  that  the  day  of  Christ  is  at  hand.  Let  no  man 
deceive  you  by  any  means;  for  that  day  shall  not  come,  except  there 
come  a  falling  away  first,  and  that  man  of  sin  be  revealed,  the  son  of 
perdition;  who  opposeth  and  exalteth  himself  above  all  that  is  called 
God,  or  that  is  worshiped;  so  that  he  as  God  sitteth  in  the  temple  of 
God,  showing  himself  that  he  is  God."  "  For  the  mystery  of  iniquity 
doth  already  work." 

Speaking  to  the  elders  of  the  church  at  Ephesus,  Paul 
makes  known  what  is  the  secret,  we  might  say  the  spring •,  of  the 
Papacy.  Acts  20:28-30.  "Of  your  own  selves  shall  men 
arise,  speaking  perverse  things,  to  draw  away  disciples  after 
them. ' '  He  was  here  speaking  to  the  elders  of  the  churches — 
the  bishops.  Whether  he  meant  that  there  would  be  among 

14  (2ir) 


212  THE     RIGHTS     OF     THE     PEOPLE. 

these  Ephesian  bishops,  individuals  who  would  do  this,  or  that 
the  bishopric  would  be  perverted  from  its  true  office,  and  wtmld 
exalt  itself  to  the  full  development  of  the  Papacy,  it  matters  not; 
for  the  words  themselves  express  the  fact  as  it  was  enacted  in  the 
history  that  followed.  The  bishopric  of  Rome  finally  developed 
into  the  Papacy,  which  is  the  embodiment  of  the  '  'mystery  of 
iniquity."  This  work,  as  he  says,  began  by  the  bishops' 
speaking  perverse  things,  to  draw  away  disciples  after  them. 
It  became  quite  general  about  twenty  years  after  the  death 
of  John.  Says  Mosheim : — 

"The  bishops  augmented  the  number  of  religious  rites  in  the  Chris- 
tian worship,  by  way  of  accommodation  to  the  infirmities  and  preju- 
dices both  of  Jews  and  heathen,  in  order  to  facilitate  their  conversion 
to  Christianity."  "For  this  purpose,  they  gave  the  name  of  mys- 
teries to  the  institutions  of  the  gospel,  and  decorated  particularly  the 
holy  sacrament  with  that  solemn  title.  They  used  in  that  sacred  insti- 
tution, as  also  in  that  of  baptism,  several  of  the  terms  employed  in 
the  heathen  mysteries,  and  proceeded  so  far  at  length  as  to  adopt 
some  of  the  ceremonies  of  which  those  renowned  mysteries  consisted. 
This  imitation  began  in  the  Eastern  provinces;  but  after  the  time  of 
Hadrian  [emperor  A.  D.  117-138],  who  first  introduced  the  mysteries 
among  the  Latins,  it  was  followed  by  the  Christians  who  dwelt  in  the 
western  part  of  the  empire.  A  great  part,  therefore,  of  the  service  of 
the  church  in  this  century,  had  a  certain  air  of  the  heathen  mysteries, 
and  resembled  them  considerably  in  many  particulars."— Church  His- 
tory, cent.  2,  part  2,  chapter  4,  par.  2.5. 

Another  means  by  which  these  ambitious  -bishops  secured 
disciples  to  themselves  in  great  numbers  from  among  the 
heathen,  was  the  adoption  of  the  day  of  the  sun  as  a  festival 
day. 

"The  oldest,  the  most  widespread,  and  the  most  enduring  of  all 
the  forms  of  idolatry  known  to  man,  [is]  the  worship  of  the  sun." — 
T.  W.  Chambers,  in  Old  Testament  Student,  January,  1886, 

And  says  Mosheim: — 

"Before  the  coming  of  Christ  all  the  Eastern  nations  per- 
formed divine  worship  with  their  faces  turned  to  that  part  of  the  heav- 


THE    FOURTH-CENTURY    SUNDAY-LAW    MOVEMENT.       213 

ens  where  the  sun  displays  his  rising  beams.  This  custom  was 
founded  upon  a  general  opinion  that  God,  whose  essence  they  looked 
upon  to  be  light,  and  whom  they  considered  as  being  circumscribed 
within  certain  limits,  dwelt  in  that  part  of  the  firmament  from  which 
he  sends  forth  the  sun,  the  bright  image  of  his  benignity  and  glory. 
The  Christian  converts,  indeed,  rejected  this  gross  error  [of  suppos- 
ing that  God  dwelt  in  that  part  of  the  firmament];  but  they  retained 
the  ancient  and  universal  custom  of  worshiping  toward  the  east, 
which  sprang  from  it.  Nor  is  this  custom  abolished  even  in  our  times, 
but  still  prevails  in  a  great  number  of  Christian  churches." — Church 
History ',  cent.  2,  part  2,  chapter  j,  par.  7. 

See  also  Eze.  8  :  16.  This  was  first  adopted  in  connection 
with  the  Sabbath  of  the  Lord;  but  after  a  while  the  paganized 
form  of  godliness  crowded  out  the  Sabbath  entirely,  and  those 
were  cursed  who  would  observe  it.  By  the  beginning  of  the 
fourth  century  this  apostasy  had  gained  a  prominence  by  which 
it  could  make  itself  felt  in  the  political  workings  of  the  Roman 
Empire.  The  ambitious  bishops  of  the  apostasy  had  at  this 
time  invented  a  theory  of  government  which  they  determined 
to  have  recognized,  which  should  make  the  civil  power  subor- 
dinate to  the  ecclesiastical.  Says  Neander: — 

"  There  had  in  fact  arisen  in  the  church  a  false  theocratical  theory, 
originating  not  in  the  essence  of  the  gospel,  but  in  the  confusion  of  the 
religious  constitutions  of  the  Old  and  New  Testaments,  which  .  .  . 
brought  along  with  it  an  unchristian  opposition  of  the  spiritual  to  the 
secular  power,  and  which  might  easily  result  in  the  formation  of  a 
sacerdotal  State,  subordinating  the  secular  to  itself  in  a  false  and 
outward  way." — Torrey's Neander,  Boston,  1852, p.  132. 

The  government  of  Israel  was  a  true  theocracy.  That  was 
really  a  government  of  God.  At  the  burning  bush,  God 
commissioned  Moses  to  lead  his  people  out  of  Egypt.  By 
signs  and  wonders  and  mighty  miracles  multiplied,  God  deliv- 
ered Israel  from  Egypt,  and  led  them  through  the  wilderness, 
and  finally  into  the  promised  land.  There  he  ruled  them  by 
judges  "until  Samuel  the  prophet,"  to  whom,  when  he  was  a 
child,  God  spoke,  and  by  whom  he  made  known  his  will. 


214  THE     RIGHTS     OF     THE     PEOPLE. 

In  the  days  ot  Samuel,  the  people  asked  that  they  might  have 
a  king.  This  was  allowed,  and  God  chose  Saul,  and  Samuel 
anointed  him  king  of  Israel.  Saul  failed  to  do  the  will  of  God, 
and  as  he  rejected  the  word  of  the  Lord,  the  Lord  rejected  him 
from  being  king,  and  sent  Samuel  to  anoint  David  king  of 
Israel;  and  David's  throne  God  established  forevermore. 
When  Solomon  succeeded  to  the  kingdom  in  the  place 
of  David  his  father,  the  record  is,  "Then  Solomon  sat  on 
the  throne  of  the  Lord  as  king  instead  of  David  his  father. ' ' 
i  Chron.  29  :  23.  David's  throne  was  the  throne  of  the  Lord, 
and  Solomon  sat  on  the  throne  of  the  Lord  as  king  over  the 
earthly  kingdom  of  God.  The  succession  to  the  throne 
descended  in  David's  line  to  Zedekiah,  wrho  was  made  subject 
to  the  king  of  Babylon,  and  who  entered  into  a  solemn  cov- 
enant before  God  that  he  would  loyally  render  allegiance  to 
the  king  of  Babylon.  But  Zedekiah  broke  his  covenant;  and 
then  God  said  to  him: — 

"Thou,  profane  wicked  prince  of  Israel,  whose  day  is  come,  when 
iniquity  shall  have  an  end,  thus  saith  the  Lord  God:  Remove  the  dia- 
dem, and  take  off  the  crown;  this  shall  not  be  the  same;  exalt,  him 
that  is  low,  and  abase  him  that  is  high.  I  will  overturn,  overturn, 
overturn  it;  and  it  shall  be  no  more,  until  he  come  whose  right  it  is; 
and  I  will  give  it  him."  Eze.  21  :  25-27.  See  also  Eze.  17  : 1-21. 

The  kingdom  was  then  subject  to  Babylon.  When  Baby- 
lon fell,  and  Medo-Persia  succeeded,  it  was  overturned  the  first 
time.  When  Medo-Persia  fell,  and  was  succeeded  by  Grecia, 
it  was  overturned  the  second  time.  When  the  Greek  Empire 
gave  way  to  Rome,  it  was  overturned  the  third  time.  And 
then  says  the  word,  "It  shall  be  no  more,  until  he  come  whose 
right  it  is;  and  I  will  give  it  him."  Who  is  he  whose  right  it 
is? — "Thou  .  .  .  shalt  call  his  name  Jesus.  He  shall  be 
great,  and  shall  be  called  the  Son  of  the  Highest;  and  the  Lord 
God  shall  give  unto  him  the  throne  of  his  father  David;  and  he 
shall  reign  over  the  house  of  Jacob  forever;  and  of  his  kingdom 


'nil-.    FOI'k TH-CKVH  K\     Sr.\I>AY-LAW    MOVEMENT.       215 

there  shall  be  no  end. "  Luke  1:31-33.  And  while  he  was 
here  as  ' '  that  prophet, "  "a  man  of  sorrows,  and  acquainted 
with  grief, ' '  the  night  in  which  he  was  betrayed  he  himself 
declared,  "  My  kingdom  is  not  of  this  world." 

Thus  the  throne  of  the  Lord  has  been  removed  from  this 
world,  and  will  "  be  no  more,  until  he  come  whose  right  it  is," 
and  then  it  will  be  given  him.  And  that  time  is  the  end  of  this 
world,  and  the  beginning  of  ' '  the  world  to  come. ' '  Therefore, 
while  this  world  stands,  a  true  theocracy  can  never  be  in  it 
again.  Consequently,  from  the  death  of  Christ  till  the  end  of 
this  world,  every  theory  of  an  earthly  theocracy  is  a  false  the- 
ory; every  pretension  to  it  is  a  false  pretension;  and  wherever 
any  such  theory  is  proposed  or  advocated,  whether  in  Rome  in 
the  fourth  century,  or  anywhere  else  in  any  other  century,  it 
bears  in  it  all  that  the  Papacy  is  or  that  it  ever  pretended  to  be, 
— it  puts  a  man  in  the  place  of  God. 

These  theocratical  bishops  in  the  fourth  century  made 
themselves  and  their  power  a  necessity  to  Constantine,  who,  in 
order  to  make  sure  of  their  support,  became  a  political  convert 
to  the  form  of  Christianity,  and  made  it  the  recognized  religion 
of  the  empire.  And  says  Neander  further: — 

"This  theocratical  theory  was  already  the  prevailing  one  in  the 
time  of  Constantine;  and  .  .  .  the  bishops  voluntarily  made 
themselves  dependent  on  him  by  their  disputes,  and  by  their  deter- 
mination to  make  use  of  the  power  of  the  State  for  the  furtherance  of 
their  aims." — Idem. 

In  these  quotations  from  Neander,  the  whole  history  of  the 
Papacy  is  epitomized.  All  that  the  history  of  the  Papacy  is,  is 
only  the  working  out  of  this  theory.  For  the  first  step  in  the 
logic  of  a  man-made  theocracy,  is  a  pope;  the  second  step  is 
the  infallibility  of  that  pope;  and  the  third  step  is  the  Inquisi- 
tion, to  make  his  infallibility  effective,  as  we  will  prove: — 

First,  a  true  theocracy  being  a  government  immediately 
directed  by  God,  a  false  theocracy  is  a  government  directed  by 


2l6  THE     RIGHTS     OF    THE     PEOPLE. 

a  man  in  the  place  of  God.  But  a  man  governing  in  the  place 
of  God  is  a  pope.  A  man  ruling  the  world  in  the  place  of 
God  is  all  that  the  pope  has  ever  claimed  to  be.  In  the  Ency- 
clical of  Leo  XI II.,  of  June,  1894,  relating  to  the  "reunion 
of  Christendom,"  addressed  "To  the  Princes  and  Peoples  of 
the  Universe,"  this  pope  assures  them  that  "we  hold  the 
regency  of  God  on  earth. ' ' l 

Second,  a  false  theocracy  being  a  professed  government  of 
God,  he  who  sits  at  the  head  of  it,  sits  there  as  the  representa- 
tive of  God.  He  represents  the  divine  authority;  and  when 
he  speaks  or  acts  officially,  his  speech  or  act  is  that  of  God. 
But  to  make  a  man  thus  the  representative  of  God,  is  only  to 
clothe  human  passions  with  divine  power  and  authority.  And 
being  human,  he  is  bound  always  to  act  unlike  God;  and  being 
clothed  with  irresponsible  power,  he  will  sometimes  act  like  the 
devil.  Consequently,  in  order  to  make  all  his  actions  consist- 
ent with  his  profession,  he  is  compelled  to  cover  them  all  with 
the  divine  attributes,  and  make  everything  that  he  does  in  his 
official  capacity  the  act  of  God. 

This  is  precisely  the  logic  and  the  profession  of  papal  infal- 
libility. It  is  not  claimed  that  all  the  pope  speaks  is  infallible; 
it  is  only  what  he  speaks  officially — what  he  speaks  ' '  from  the 
throne."  Under  this  theory,  he  sits  upon  that  throne  as  the 
head  of  the  government  of  God  in  this  world.  He  sits  there 
as  the  representative — the  "regent" — of  God.  And  when  he 
speaks  officially,  when  he  speaks  from  the  throne,  he  speaks  as 
the  representative  of  God.  Therefore,  sitting  in  the  place  of 
God,  ruling  from  that  place  as  the  official  representative  of  God, 
that  which  he  speaks  from  the  throne  is  the  word  of  God,  and 
must  be  infallible. 

This  is  the  straight  logic  of  the  false  theocratical  theory. 

1  The  Monitor  (Catholic),  of  San  Francisco,  has  denied  that  "  To  the  Princes  and 
Peoples  of  the  Universe.'1''  is  a  correct  translation  of  the  title  of  this  Encyclical.  But 
this  is  the  translation  as  it  stands  in  the  official  copy  sent  out  by  Cardinal  Gibbons,  and 
;is  it  is  published  in  the  Northwestern  Chronicle,  July  20,  1894. 


THE    FOURTH-CENTURY   SUNDAY-LAW   MOVEMENT.      2iy 

And  if  it  is  denied  that  the  theory  is  false,  there  is  logically  no 
escape  from  accepting  the  papal  system.  The  claims  of  the 
Papacy  are  not  in  the  least  extravagant,  if  the  theory  be  cor- 
rect. 

Third,  God  is  the  moral  governor.  His  government  is  a 
moral  one,  whose  code  is  the  moral  law.  His  government  and 
his  law  have  to  do  with  the  thoughts,  the  intents,  and  the 
secrets  of  men's  hearts.  This  must  be  ever  the  government  of 
God,  and  nothing  short  of  it  can  be  the  government  of  God. 
The  pope  then  being  the  head  of  what  pretends  to  be  a  gov- 
ernment of  God,  and  ruling  there  in  the  place  of  God,  his 
government  must  rule  in  the  realm  of  morals,  and  must  take 
cognizance  of  the  counsels  of  the  heart.  But  being  a  man, 
how  could  he  discover  what  were  the  thoughts  of  men's  hearts, 
whether  they  were  good  or  evil,  that  he  might  pronounce  judg- 
ment upon  them  ? — By  long  and  careful  experiment,  and  by 
intense  ingenuity,  means  were  discovered  by  which  the  most 
secret  thoughts  of  men's  hearts  might  be  wrung  from  them, 
and  that  was  by  the  Inquisition. 

But  the  Inquisition  was  only  the  direct  logic  of  the  theo- 
cratical  theory  upon  which  the  Papacy  was  founded.  The  his- 
tory of  the  Papacy  is  only  the  logic  of  the  theocratical  theory 
upon  which  the  Papacy  was  founded:  First,  a  pope;  then  the 
infallibility  of*  that  pope;  then  the  Inquisition,  to  make  his 
infallible  authority  effective.  And  that  is  the  logic  of  any  the- 
ocratical theory  of  earthly  government  since  Jesus  Christ  died. 

This  being  the  theory  of  the  bishops,  and  their  determina- 
tion being  ' '  to  make  use  of  the  power  of  the  State  for  the  fur- 
therance of  their  aims, ' '  the  question  arises,  What  means  did 
they  employ  to  secure  control  of  this  power  ?  Answer —  The 
means  of  Sunday  laws.  They  secured  from  Constantine  the 
following  Sunday  law: — 

"THE- EMPEROR  CONSTANTINE  TO  HELPIDIUS. 

"  On  the  venerable  day  of  the  sun  let  the  magistrates  and  people 


21 8  THE    RIGHTS     OF    THE     PEOPLE, 

living  in  towns  rest,  and  let  all  workshops  be  closed.  Nevertheless, 
in  the  country,  those  engaged  in  the  cultivation  of  land  may  freely  and 
lawfully  work,  because  it.  often  happens  that  another  day  is  not  so  well 
fitted  for  sowing  grain  and  planting  vines;  lest  by  neglect  of  the  best 
time  the  bounty  provided  by  Heaven  should  be  lost.  Given  the  sev- 
enth day  of  March,  Crispus  and  Constantine  being  consuls,  both  for 
the  second  time."  [A.  D.  321.] 

This  was  not  the  very  first  Sunday  law  that  they  secured: 
the  first  one  has  not  survived.  But  though  it  has  not  survived, 
the  reason  for  it  has.  Sozomen  says  that  it  was  "  that  the  day 
might  be  devoted  with  less  interruption  to  the  purposes  of 
devotion."  And  this  statement  of  Sozomen' s  is  indorsed  by 
Neander  ("  Church  History,"  Vol.  II,  p.  298).  This  reason 
given  by  Sozomen  reveals  the  secret  of  the  legislation;  it 
shows  that  it  was  in  behalf  of  the  church,  and  to  please  the 
church. 

By  reading  the  above  edict,  it  is  seen  that  they  started  out 
quite  moderately.  They  did  not  stop  all  work;  only  judges, 
townspeople,  and  mechanics  were  required  to  rest,  while 
people  in  the  country  might  freely  and  lawfully  work.  The 
emperor  paraded  his  soldiers  on  Sunday,  and  required  them 
to  repeat  in  concert  the  following  prayer: — 

"Thee  alone  we  acknowledge  as  the  true  God;  thee  we  acknowl- 
edge as  ruler;  thee  we  invoke  for  help;  from  thee  have  we  received 
the  victory;  through  thee  have  we  conquered  our  enemies;  to  thee, 
are  we  indebted  for  our  present  blessings;  from  thee  also  we  hope  for 
future  favors;  to  thee  we  will  (direct  our  prayer.  We  beseech  thee, 
that  thou  wouldst  preserve  our  Emperor  Constantine  and  his  pious 
sons  in  health  and  prosperity  through  the  longest  life." 

This  Sunday  law  of  A.  D.  321  continued  until  386,  when — 

"Those  older  changes  effected  by  the  Emperor  Constantine  were 
more  rigorously  enforced,  and,  in  general,  civil  transactions  of  every 
kind  on  Sunday  were  strictly  forbidden.  Whoever  transgressed  was 
to  be  considered,  in  fact,  as  guilty  of  sacrilege." — Neander,  Id., p. 
300. 


THE    FOl'K  i H-CENTURY    SUNDAY-LAW    MOVEMENT.          2  1C) 

Then  as  the  people  were  not  allowed  to  do  any  manner  of 
work,  they  would  play,  and,  as  the  natural  consequence,  the 
circuses  and  the  theaters  throughout  the  empire  were  crowded 
every  Sunday.  But  the  object  of  the  law,  from  the  first  one 
that  was  issued,  was  that  the  day  might  be  used  for  the  pur- 
poses of  devotion,  and  the  people  might  go  to  church.  Con- 
sequently, that  this  object  might  be  met,  there  was  another 
step  to  take,  and  it  was  taken.  At  a  church  convention  held 
at  Carthage  in  401,  the  bishops  passed  a  resolution  to  send  up 
a  petition  to  the  emperor,  praying— 

"That  the  public  shows  might  be  transferred  from  the   Christian 
Sunday,  and  from  feast  days,  to  some  other  days  of  the  week." — Id. 

And  the  reason  given  in  support  of  the  petition  was, — 

"The  people  congregate  more  to  the  circus  than  to  the  church." 
— Id.,  note 5. 

In  the  circuses  and  the  theaters  large  numbers  of  men  were 
employed,  among  whom  many  were  church  members.  But, 
rather  than  to  give  up  their  jobs,  they  would  work  on  Sunday. 
The  bishops  complained  that  these  were  compelled  to  work; 
they  pronounced  it  persecution,  and  asked  for  a  law  to  protect 
those  persons  from  such  ' '  persecution. ' '  The  church  had 
become  filled  with  a  mass  of  people,  unconverted,  who  cared 
vastly  more  for  worldly  interests  and  pleasures  than  they  did 
for  religion.  And  as  the  government  was  now  a  government 
of  God,  it  was  considered  proper  that  the  civil  power  should  be 
used  to  cause  all  to  show  respect  for  God,  whether  or  not  they 
had  any  respect  for  him. 

But  as  long  as  the  people  could  make  something  by  work- 
ing on  Sunday,  they  would  work  rather  than  go  to  church.  '  A 
law  was  secured  forbidding  all  manner  of  Sunday  work.  Then 
they  would  crowd  the  circuses  and  the  theaters,  instead  oi 
going  to  church.  But  this  was  not  what  the  bishops  wanted; 
this  was  not  that  for  which  all  work  had  been  forbidden.  All 


220  THE     RIGHTS     OF    THE     PEOPLE. 

work  was  forbidden  in  order  that  the  people  might  go  to 
church;  but  instead  of  that,  they  crowded  to  the  circus  and  the 
theater,  and  the  audiences  of  the  bishops  were  rather  slim. 
This  was  not  at  all  satisfying  to  their  pride;  therefore  the  next 
step,  and  a  logical  one,  too,  was,  as  the  petition  prayed,  to 
have  the  exhibitions  of  the  circuses  and  the  theaters  transferred 
to  some  other  days  of  the  week,  so  that  the  churches  and  the 
theaters  should  not  be  open  at  the  same  time.  For  if  both 
were  open,  the  Christians (?),  as  well  as  others,  not  being  able 
to  go  to  both  places  at  once,  would  go  to  the  circus  or  the 
theater  instead  of  to  the  church.  Neander  says: — 

"Owing  to  the  prevailing  passion  at  that  time,  especially  in  the 
large  cities,  to  run  after  the  various  public  shows,  it  so  happened  that 
when  these  spectacles  fell  on  the  same  days  which  had  been  conse- 
crated by  the  church  to  some  religious  festival,  they  proved  a  great 
hindrance  to  the  devotion  of  Christians,  though  chiefly,  it  must  be 
allowed,  to  those  whose  Christianity  was  the  least  an  affair  of  the  life 
and  of  the  heart." — Id. 

Assuredly  !  An  open  circus  or  theater  will  always  prove  a 
great  hindran.ce  to  the  devotion  of  those  "Christians"  whose 
Christianity  is  the  least  an  affair  of  the  life  and  of  the  heart. 
In  other  words,  an  open  circus  or  theater  will  always  be  a 
great  hindrance  to  the  devotion  of  those  who  have  not  religion 
enough  to  keep  them  from  going  to  it,  but  who  only  want  to 
use  the  profession  of  religion  to  maintain  their  popularity  and 
to  promote  their  selfish  interests.  On  the  other  hand,  to  the 
devotion  of  those  whose  Christianity  is  really  an  affair  of  the 
life  and  of  the  heart,  an  open  circus  or  theater  will  never  be  a 
particle  of  hindrance,  whether  open  at  church  time  or  all  the 
time.  But  those  people  had  not  enough  religion  or  love  of 
right  to  do  what  they  thought  to  be  right;  therefore  they 
wanted  the  State  to  take  away  from  them  all  opportunity  to 
do  wrong,  so  that  they  could  all  be  Christians.  Satan  himself 
could  be  made  that  kind  of  Christian  in  that  way;  but  he  would 
be  Satan  still. 


THE    FOURTH-CENTURY    SUNDAY-LAW    MOVEMENT.         221 

Says  Neander  again : — 

' '  Church  teachers  .  .  .  were  in  truth  often  forced  to  complain 
that  in  such  competitions  the  theater  was  vastly  more  frequented  than 
the  church." — Id. 

And  the  church  could  not  then  stand  competition;  she 
wanted  a  monopoly.  And  she  got  it. 

This  petition  of  the  Carthage  convention  could  not  be 
granted  at  once,  but  in  425  the  desired  law  was  secured;  and 
to  this  also  there  was  attached  the  reason  that  was  given  for 
the  first  Sunday  law  that  ever  was  made,  namely: — 

"  In  order  that  the  devotion  of  the  faithful  might  be  free  from  all 
disturbance." — Id.,  p.  301. 

It  must  constantly  be  borne  in  mind,  however,  that  the 
only  way  in  which  ' '  the  devotion  of  the  faithful ' '  was  ' '  dis- 
turbed ' '  by  these  things  was  that,  when  the  circus  or  the 
theater  was  open  at  the  same  time  that  the  church  was  open, 
the  ' '  faithful ' '  would  go  to  the  circus  or  the  theater  instead  of 
to  church,  and,  therefore,  their  ' '  devotion  ' '  was  ' '  disturbed. ' ' 
And  of  course  the  only  way  in  which  the  ' '  devotion  ' '  of  such 
' '  faithful ' '  ones  could  be  freed  from  all  disturbance,  was  to 
close  the  circuses  and  the  theaters  at  church  time. 

In  the  logic  of  this  theocratical  scheme,  there  was  one 
more  step  to  be  taken.  It  came  about  in  this  way:  First,  the 
church  had  all  work  on  Sunday  forbidden,  in  order  that  the 
people  might  attend  to  things  divine.  But  the  people  went 
to  the  circus  and  the  theater  instead  of  to  church.  Then  the 
church  had  laws  enacted  closing  the  circuses  and  the  theaters, 
in  order  that  the  people  might  attend  to  things  divine.  But 
even  then  the  people  would  not  be  devoted,  nor  attend  to 
things  divine,  for  they  had  no  real  religion.  The  next  step 
to  be  taken,  therefore,  in  the  logic  of  the  situation,  was  to 
compel  them  to  be  devoted — to  compel  them  to  attend  to 
things  divine.  This  was  the  next  step  logically  to  be  taken, 


222  THE     RIGHTS     OF     THE     PEOPLE. 

and  it  was  taken.  The  theocratical  bishops  were  equal  to  the 
occasion.  They  were  ready  with  a  theory  that  exactly  met 
the  demands  of  the  case,  and  the  great  Catholic  Church 
father  and  Catholic  saint,  Augustine,  was  the  father  of  this 
Catholic  saintly  theory.  He  wrote: — 

"  It  is  indeed  better  that  men  should  be  brought  to  serve  God  by 
instruction  than  by  fear  of  punishment,  or  by  pain.  But  because  the 
former  means  are  better,  the  latter  must  not,  therefore,  be  neglected. 
Many  must  often  be  brought  back  to  their  Lord,  like  wicked  servants, 
by  the  rod  of  temporal  suffering,  before  they  attain  to  the  highest 
grade  of  religious  development." — Schaff' s  Church  History,  Vol.  IT, 
sec.  27. 

Of  this  theory  Neander  remarks: — 

"  It  was  by  Augustine,  then,  that  a  theory  was  proposed  and 
founded  which  ....  contained  the  germ  of  that  whole  system 
of  spiritual  despotism,  of  intolerance  and  persecution,  which  ended  in 
the  tribunals  of  the  Inquisition." — Church  History,  p.  217. 

The  history  of  the  Inquisition  is  only  the  history  of  the 
carrying  out  of  this  infamous  theory  of  Augustine's.  But  this 
theory  is  only  the  logical  sequence  of  the  theory  upon  which 
the  whole  series  of  Sunday  laws  was  founded. 

Then  says  Neander: — 

"  In  this  way  the  church  received  help  from  the  State  for  the  fur- 
therance of  her  ends." 

This  statement  is  correct.  Constantine  did  many  things 
to  favor  the  bishops.  He  gave  them  money  and  political 
preference.  He  made  their  decisions  in  disputed  cases  final, 
as  the  decision  of  Jesus  Christ.  But  in  nothing  that  he  did 
for  them  did  he  give  them  power  over  those  who  did  not  belong 
to  the  church,  to  compel  them  to  act  as  though  they  did, 
except  in  Unit  one  thing  of  the  Sunday  law.  Their  decisions, 
which  he  decreed  to  be  final,  were  binding  only  on  those  who 
voluntarily  chose  that  tribunal,  and  affected  none  others. 
Before  this  time  if  any  who  had  repaired  to  the  tribunal  of  the 


THE    FOURTH-CENTURY    SUNDAY-LAW    MOVEMENT.         223 

bishops  were  dissatisfied  with  the  decision,  they  could  appeal 
to  the  civil  magistrate.  This  edict  cut  off  that  source  of  appeal, 
yet  affected  none  but  those  who  voluntarily  chose  the  arbitra- 
tion of  the  bishops.  But  in  the  Sunday  law  power  was  given 
to  the  church  to  compel  those  who  did  not  belong  to  the 
church,  and  who  were  not  subject  to  the  jurisdiction  of  the 
church,  to  obey  the  commands  of  the  church.  In  the  Sunday 
law  there  was  given  to  the  church  control  of  the  civil  power, 
that  by  it  she  could  compel  those  who  did  not  belong  to  the 
church  to  act  as  if  they  did.  The  history  of  Constantine's 
time  may  be  searched  through  and  through,  and  it  will  be 
found  that  in  nothing  did  he  give  to  the  church  any  such 
power,  except  in  this  one  thing — the  Sunday  law.  Neander's 
statement  is  literally  correct,  that  it  was  '  *  in  this  way  the 
church  received  help  from  the  State  for  the  furtherance  of  her 
ends. ' ' 

Here  let  us  bring  together  more  closely  the  direct  bearing 
of  these  statements  from  Neander.  First,  he  says  of  the  car- 
rying into  effect  of  the  theocratical  theory  of  those  bishops, 
that  they  made  themselves  dependent  upon  Constantine  by 
their  disputes,  and  ' '  by  their  determination  to  use  the  power 
of  the  State  for  the  furtherance  of  their  aims. ' '  Then  he  men- 
tions the  first  and  second  Sunday  laws  of  Constantine;  the 
Sunday  law  of  386;  the  Carthage  convention,  resolution,  and 
petition  of  401;  and  the  law  of  425  in  response  to  this  petition; 
and  then,  without  a  break,  and  with  direct  reference  to  these 
Sunday  laws,  he  says,  "In  this  way  the  church  received  help 
from  the  State  for  the  furtherance  of  her  ends. ' ' 

She  started  out  with  the  determination  to  do  it.  She  did 
it,  and  "in  this  way"  she  did  it.  And  when  she  had  secured 
control  of  the  power  of  the  State,  she  used  it  for  the  further- 
ance of  her  own  aims,  and  that  in  her  own  despotic  way,  as 
announced  in  the  inquisitorial  theory  of  Augustine.  The  first 
step  logically  and  inevitably  led  to  the  last,  and  the  theocratical 


224  THK     RIGHTS     OF     THI-;     1'KOPI.F,. 

leaders  in  the  movement  had  the  cruel  courage  to  follow  th«* 
first  step  unto  the  last,  as  framed  in  the  words  of  Augustine, 
and  illustrated  in  the  history  of  the  Inquisition. 

-    LOOK    ON    THAT    PICTURE,    THEN    ON    THIS. 

In  a  preceding  chapter  we  have  given  verbatim  the  con- 
gressional Sunday  measure,  and  have  discussed  some  of  its 
features.  As  we  have  seen,  it  was  forced  upon  Congress  by 
the  churches,  even  under  threats.  What,  then,  is  the  purpose 
of  those  who  are  working  so  strenuously  to  have  Sunday  fixed 
in  the  law,  whether  national  law  or  State  law  ? 

At  Elgin,  Illinois,  November  8,  1887,  there  was  held  a 
Sunday-law  convention,  which  was  but  the  first  in  a  series  of 
events  that  ended  only  with  the  congressional  recognition  and 
establishment  of  Sunday  as  the  national  "  Christian  sabbath." 
The  doctrines  and  acts  of  this  convention  are,  therefore, 
proper  evidence  in  this  inquiry. 

This  convention  was  "called  by  the  members  of  the  Elgin 
Association  of  Congregational  Ministers  and  Churches,  to  con- 
sider the  prevalent  desecration  of  the  sabbath,  and  its  remedy. ' ' 
It  was  well  attended  by  prominent  ministers.  In  that  con- 
vention the  following  resolutions  were  passed: — 

"Resolved,  That  we  recognize  the  Sabbath  as  an  institution  of 
God,  revealed  in  nature  and  the  Bible,  and  of  perpetual  obligation  on 
all  men;  and  also  as  a  civil  and  American  institution,  bound  up  in 
vital  and  historical  connection  with  the  origin  and  foundation  of  our 
government,  the  growth  of  our  polity,  and  necessary  to  be  maintained 
in  orderfor  the  preservation  and  integrity  of  our  national  system,  and, 
therefore,  as  having  a  sacred  claim  on  all  patriotic  American  citizens." 

'  The  seventh  day  is  the  Sabbath  of  the  Lord  thy  God, ' ' 
is  what  the  commandment  says,  and  that  is  whose  it  is.  The 
word  "sabbath"  means  rest.  But  the  rest  belongs  to  the  one 
who  rested.  Who  rested? — God.  From  what? — From  the 
work  of  creation.  "Remember  the  Sabbath  day,  to  keep  it 


THE   PRESENT-DAY   SUNDAY-LAW   MOVEMENT.  225 

holy,"  says  the  commandment.  It  is  religious  entirely.  There 
is  nothing  either  American  or  civil  about  it.  It  is  the  Lord's, 
and  it  is  holy.  If  it  is  not  kept  holy,  it  is  not  kept  at  all. 
And  being  the  Sabbath  of  the  Lord — the  Lord's  day — it  is  to 
be  rendered  to  the  Lord,  and  not  to  Caesar.  With  its  observ- 
ance or  nonobservance  civil  government  can  never  of  right 
have  anything  to  do.  The  second  resolution  was  this: — 

"•Resolved,  That  we  look  with  shame  and  sorrow  on  the  non-ob- 
servance of  the  sabbath  by  many  Christian  people,  in  that  the  custom 
prevails  with  them  of  purchasing  sabbath  newspapers,  engaging  in, 
and  patronizing  sabbath  business  and  travel,  and  in  many  instances 
giving  themselves  to  pleasure  and  self-indulgence,  setting  aside  by  neg- 
lect and  indifference  the  great  duties  and  privileges  which  God's  day 
brings  them." 

That  is  a  fact.  They  ought  to  be  ashamed  of  it.  But 
what  do  they  do  to  rectify  the  matter?  Do  they  resolve  tc 
preach  the  gospel  better,  to  be  more  faithful  themselves  in 
bringing  up  the  consciences  of  the  people,  by  showing  them  their 
duty  in  regard  to  these  things? — Oh,  no.  They  resolve  to  do 
this: — 

"Resolved,  That  we  give  our  votes  and  support  to  those  candi- 
dates or  political  officers  \\  ho  will  pledge  themselves  to  vote  for  the 
enactment  and  enforcing  of  statutes  in  favor  of  the  civil  sabbath." 

Yes,  they  are  ashamed  and  sorry  that  Christians  will  not 
act  like  Christians,  morally  and  religiously;  therefore  they  will 
compel  them  to  act  both  morally  and  religiously  by  enforcing 
upon  them  a  civil  sabbath!  But  if  men  will  not  obey  the  com- 
mandment of  God  without  being  compelled  to  do  it  by  the  civil 
law,  then  when  they  obey  the  civil  law,  are  they  obeying  God  ? 
— T4iey  are  not.  Do  not  these  people,  then,  in  that,  put  the 
civil  law  in  the  place  of  the  law  of  God,  and  the  civil  govern- 
ment in  the  place  of  God? — They  assuredly  do.  And  that  is 
always  the  effect  of  such  attempts  as  this.  It  makes  utter  con- 


226  THE     RIGHTS     OF     THE     PEOPLE. 

fusion  of  all  civil  and  religious  relations,  and  only  adds  hypoc- 
risy to  guilt,  and  increases  unto  more  ungodliness. 

There  is  another  important  consideration  just  here.  They 
never  intended  to  secure  nor  to  enforce  a  civil  Sunday,  but  a 
religious  one  wholly;  for  in  all  the  discussions  of  that  whole 
convention  there  was  not  a  word  said  about  a  civil  sabbath, 
except  in  two  of  these  resolutions.  In  the  discussions  of  the 
resolutions  themselves  everything  was  upon  a  religious  basis. 
There  is  no  such  thing  as  a  civil  sabbath,  and  no  man  can 
argue  three  minutes  in  favor  of  Sunday  or  any  other  day  as  a 
civil  sabbath  without  making  it  only  what  it  is,  religious 
wholly. 

In  a  Sunday-law  mass  meeting  held  in  Hamilton  Hall, 
Oakland,  Cal.,  in  January,  1887,  "Rev."  Dr.  Briggs,  of  Napa, 
Cal.,  said  to  the  State: — 

"You  relegate  moral  instruction  to  the  church,  and  then  let  all  go 
as  they  please  on  Sunday,  so  that  we  cannot  get  at  them." 

"  And  so  they  want  the  State  to  corral  all  the  people  on  Sun- 
day, that  the  preachers  may  get  at  them.  That  is  what  they 
wanted  in  the  fourth  century.  They  got  it  at  last.  The  Sun- 
day railway  train  must  also  be  stopped,  and  for  the  same 
reason.  In  the  Elgin  convention  Dr.  Everts  said: — 

"The  Sunday  train  is  another  great  evil.  They  cannot  afford  to 
run  a  train  unless  they  get  a  great  many  passengers,  and  so  break  up  a 
great  many  congregations.  The  Sunday  railroad  trains  are  hurrying 
their  passengers  fast  on  to  perdition.  What  an  outrage  that  the  rail- 
road, that  great  civilizer,  should  destroy  the  Christian  sabbath!" 

It  is  not  necessary  to  add  any  more  statements,  though 
whole  pages  of  them  might  be  cited;  they  are  all  in  the  same 
line.  They  all  plainly  show  that  the  secret  and  real  object  of 
the  whole  Sunday-law  movement  is  to  get  people  to  go  to 
church.  The  Sunday  train  must  be  stopped  because  church 
members  ride  on  it,  and  don't  go  to  church  enough.  The 


THE    PRESENT-DAY    SUNDAY-LAW    MOVEMENT.  227 

Sunday  paper  must  be  abolished  because  the  people  read  it 
instead  of  going  to  church,  and  because  those  who  read  it  and 
go  to  church  too  are  not  so  well  prepared  to  receive  the 
preaching. 

It  was  precisely  the  same  way  in  the  fourth  century  con- 
cerning the  Sunday  circus  and  theater.  The  people,  even  the 
church  members,  would  go  to  these  instead  of  to  church;  and 
even  if  any  went  to  both,  it  must  be  confessed  that  the  Roman 
circus  or  theater  was  not  a  very  excellent  dish  to  set  down 
before  a  man  to  prepare  him  for  hearing  the  word  of  God. 
The  Sunday,  circus  and  theater  could  not  afford  to  keep  open 
unless  they  could  have  a  great  many  spectators  and  so  break 
up  a  great  many  congregations.  And  as  they  hurried  the 
spectators  fast  on  to  perdition,  they  had  to  be  shut  on  Sunday, 
so  as  to  keep  "a  great  many  congregations"  out  of  perdition. 

It  is  exceedingly  difficult  to  see  how  a  Sunday  circus  in  the 
fourth  century  could  hurry  to  perdition  any  one  who  did  not 
attend  it;  or  how  a  Sunday  train  in  the  nineteenth  century  can 
hurry  to  perdition  any  one  who  does  not  ride  on  it.  And  if 
any  are  hurried  to  perdition  by  this  means,  who  is  to  blame: 
the  Sunday  train,  or  the  ones  who  ride  on  it?  Right  here  lies 
the  secret  of  the  whole  evil  now,  as  it  did  in  the  fourth  century : 
they  blame  everybody  and  everything  else,  even  to  inanimate 
things,  for  the  irreligion,  the  infidelity,  and  the  sin  that  lie  in 
their  own  hearts. 

Nor  are  they  going  to  be  content  with  a  little.  ' '  Rev. ' ' 
W.  F.  Crafts,  speaking  before  the  Unitfed  States  Senate  Com- 
mittee, in  April,  1888,  in  favor  of  the  national  Sunday  law, 
said  :— 

"The  law  allows  the  local  postmaster,  if  he  chooses  (and  some  of 
them  do  choose),  to  open  the  mails  at  the  very  hour  of  church,  and  so 
make  the  post  office  the  competitor  of  the  churches." 

This  same  trouble  was  experienced  in  the  fourth  century, 
also,  between  the  circus  or  the  theater  and  the  church.     The 
'5 


228  THE     RIGHTS    OF     THE     PEOPLE. 

church  could  not  stand  competition.  She  would  be  content 
with  nothing  less  than  a  monopoly,  and  she  got  it,  precisely  as 
these  church  managers  are  trying  to  get  it.  More  than  this, 
they  want  now,  as  they  did  then,  the  government  to  secure 
them  in  the  enjoyment  of  a  perpetual  monopoly.  At  another 
point  in  the  same  speech  Mr.  Crafts  referred  to  the  proposed 
law  as  one  for  '  'protecting  the  church  services  from  post  office 
competition."  Having  secured  the  help  of  the  government  in 
confirming  their  monopolizing  ambition,  what  then  ? — Nothing 
short  of  a  complete  and  perpetual  monopoly  will  satisfy  them. 
This  is  proved  by  Dr.  McAllister's  words  at  Lakeside,  Ohio, 
July,  1887,  as  follows: — 

"  Let  a  man  be  what  he  may, — Jew,  seventh-day  observer  of  some 
other  denomination,  or  those  who  do  not  believe  in  the  Christian  sab- 
bath,— let  the  law  apply  to  everyone,  that  there  shall  be  no  public 
desecration  of  the  first  day  of  the  week,  the  Christian  sabbath,  the 
day  of  rest  for  the  nation.  They  may  hold  any  other  day  of  the  week 
as  sacred,  and  observe  it;  but  that  day  which  is  the  one  day  in  seven  for 
the  nation  at  large,  let  that  not  be  publicly  desecrated  by  anyone,  by 
officer  in  the  government,  or  by  private  citizen  high  or  low,  rich  or 
poor." 

There  is  much  being  said  of  the  grasping,  grinding  greed 
of  monopolies  of  many  kinds;  but  of  all  monopolies  on  earth, 
the  most  grinding,  the  most  greedy,  the  most  oppressive,  the 
most  conscienceless,  is  a  religious  monopoly. 

THE  NEW  FALSE  THEOCRATICAL  THEORY. 

A  theocratical  theory  of  government  was  the  basis  of  the 
religious  legislation  in  the  fourth  century;  it  is  the  same  now. 

The  Woman's  Christian  Temperance  Union  was,  and  is,  one 
of  the  most  active  and  influential  bodies  in  the  Sunday-law 
movement.  The  great  majority  of  the  '  'petitions' '  to  Congress, 
except  that  of  their  seven-million-two-hundred-thousand-times- 
multiplied  cardinal,  were  secured  by  the  W.  C.  T.  U.  Official 
documents  of  that  organization  declare  that — • 


THE    PRESENT-DAY    SUNDAY-LAW    MOVEMENT.  22Q 

"A  true  theocracy  is  yet  to  come,  and  the  enthronement  of  Christ 
in  law  and  lawmakers;  hence  I  pray  devoutly  as  a  Christian  patriot, 
for  the  ballot  in  the  hands  of  women,  and  rejoice  that  the  National 
Woman's  Christian  Temperance  Union  has  so  long  championed  this 
cause." — Monthly  Reading  for  September,  1886. 

And  that — 

"The  Woman's  Christian  Temperance  Union,  local,  State,  national, 
and  world-wide,  has  one  vital,  organic  thought,  one  all-absorbing  pur- 
pose, one  undying  enthusiasm,  and  that  is  that  Christ  shall  be  this 
ivorld's  king — yea,  verily,  THIS  WORLD'S  KING  in  its  realm  of  cause 
and  effect, — king  of 'its  courts,  its  camps,  its  commerce, — king  of  its 
colleges  and  cloisters, — king  of  its  customs  and  its  constitutions. 
.  .  .  The  kingdom  of  Christ  must  enter  the  realm  of  law  through 
the  gateway  of  politics.  .  .  .  We  pray  heaven  to  give  them  [the 
old  parties]  no  rest  .  .  .  until  they  shall  .  .  .  swear  an  oath  of 
allegiance  to  Christ  in  politics,  and  march  in  one  great  army  up  to  the 
polls  to  worship  God." — President's  Annual  Address  in  Convention, 
Nashville,  iSSj. 

Not  only  this,  hut  the  W.  C.  T.  U.  is  allied  with  the  Na- 
tional Reform  Association,  whose  declared  object  has  ever  been 
to  turn  this  republic  into  a  "kingdom  of  God."  In  the' Cin- 
cinnati National  Reform  Convention,  1872,  Prof.  J.  R.  W. 
Sloane,  D.D.,  said: — 

' '  Every  government  by  equitable  laws  is  a  government  of  God. 
A  republic  thus  governed  is  of  him,  through  the  people,  and  is  as 
truly  and  really  a  theocracy  as  the  commonwealth  of  Israel." 

By  the  expression  "government  by  equitable  laws"  Mr. 
Sloane  and  the  National  Reformers  generally,  mean  such  a 
government  as  the  National  Reformers  seek  to  have  established. 
According  to  their  theory,  our  government  as  the  fathers  made 
it  is  not  a  government  by  equitable  laws,  but  is  entirely  founded 
upon  infidel  and  atheistic  ideas.  Consequently  they  wanted 
the  Constitution  religiously  amended,  and  framed  upon  their 
ideas,  so  that  it  should  be  a  government  by  equitable  laws,  and 
as  truly  and  really  a  theocracy  as  was  the  commonwealth  of 
Israel. 


230  THE     RIGHTS     OF     THE     PEOPLE. 

The  Sunday-law  Association  also  holds  much  the  same 
theory.  In  the  Elgin  Sunday-law  convention,  Dr.  Mande- 
ville,  of  Chicago,  said: — 

"  The  merchants  of  Tyre  insisted  upon  selling  goods  near  the  tem- 
ple on  the  Sabbath,  and  Nehemiah  compelled  the  officers  of  the  law 
to  do  their  duty,  and  stop  it.  So  we  can  compel  the  officers  of  the 
law  to  do  their  duty." 

Now  Nehemiah  was  ruling  there  in  a  true  theocracy,  a  gov- 
ernment of  God;  the  law  of  God  was  the  law  of  the  land,  and 
God's  will  was  made  known  by  the  written  word  and  by  the 
prophets.  Therefore  if  Dr.  Mandeville's  argument  is  of  any 
force  at  all,  it  is  so  only  upon  the  claim  of  the  establishment  of 
a  theocracy.  With  this  idea  the  view  of  Mr.  Crafts  agrees  pre- 
cisely, and  Mr.  Crafts  was  general  secretary  for  the  National 
Sunday-law  Union,  in  their  national  campaign  for  national 
recognition  of  the  Sunday.  He  claims,  as  expressed  in  his 
own  words,  that — 

"  The  preachers  are  the  successors  of  the  prophets." — Christian  States- 
man, July  5,  1888. 

Now  put  these  things  together.  The  government  of  Israel 
was  a  theocracy;  the  will  of  God  was  made  known  to  the  ruler 
by  prophets;  the  ruler  compelled  the  officers  of  the  law  to  pre- 
vent the  ungodly  from  selling  goods  on  the  Sabbath.  This 
government  is  to  be  made  a  theocracy;  the  preachers  are  the 
successors  of  the  prophets;  and  they  are  to  compel  the  officers 
of  the  law  to  prevent  all  selling  of  goods  and  all  manner  of 
work  on  Sunday.  This  shows  conclusively  that  these  preach- 
ers intend  to  take  the  supremacy  into  their  hands,  officially 
declare  the  will  of  God,  and  compel  all  men  to  conform  to  it. 
This  is  why  they  must  needs  attack  the  Declaration  of  Independ- 
ence, and  declare  that  "governments  do  not  derive  their  just 
powers  from  the  consent  of  the  governed."  This  deduction  is 
made  a  certainty  by  the  words  of  Professor  Blanchard  in  the 
Elgin  convention: — 


THE    PRESENT-DAY    SUNDAY-LAW    MOVEMENT.  231 

"In  this  work  we  are  undertaking  for  the  Sabbath,  we  are  the 
representatives  of  God." 

And  the  chief  of  these  representatives  of  God  will  be  but 
a  pope  again;  because  when  preachers  control  the  civil  power 
as  the  representatives  of  God,  a  pope  is  a  certainty. 

These  quotations  prove,  to  a  demonstration,  that  the  whole 
theory  upon  which  this  religio-political  movement  is  based,  is 
identical  with  that  of  the  fourth  century,  which  established  the 
Papacy.  They  show  also  that  the  means  employed — Sunday 
laws — by  which  to  gain  control  of  the  civil  power  to  make  the 
wicked  theory  effective,  are  identical  with  the  means  which 
were  employed  in  the  fourth  century  for  the  same  purpose. 

The  next  question  is,  Will  they  carry  the  theory  into  effect 
as  they  did  in  the  fourth  century  and  onward  ? 

When  they  shall  have  stopped  all  Sunday  work,  and  all 
Sunday  papers,  and  all  Sunday  trains,  in  order  that  the  peo- 
ple may  go  to  church  and  attend  to  things  divine,  suppose 
that  then  the  people  fail  to  go  to  church  or  attend  to  things 
divine,  will  the  religio-political  managers  stop  there  ?  Having 
done  all  this  that  the  people  may  be  devoted,  will  they  suffer 
their  good  intentions  to  be  frustrated,  or  their  good  offices  to 
be  despised  ?  Will  not  these  now  take  the  next  logical  step, 
the  step  that  was  taken  in  the  fourth  century,  and  compel  men 
to  attend  to  things  divine  ?  If  not,  why  not  ?  Having  taken 
all  the  steps  but  this,  will  they  not  take  this  ? — Of  course  they 
will.  Human  nature  is  the  same  now  as  it  was  in  the  fourth 
century.  Politics  is  the  same  now  as  it  was  then.  And  as  for 
religious  bigotry,  it  knows  no  centuries;  it  knows  no  such 
thing  as  progress  or  enlightenment ;  it  is  ever  the  same.  And 
in  its  control  of  civil  power,  the  cruel  results  are  also  ever  the 
same. 

In  other  words,  when  they  get  the  power  to  oppress,  will 
they  use  the  power  ?  A  sufficient  answer  to  this  would  seem 
to  be  the  simple  inquiry,  If  they  do  not  intend  to  use  the. 


2  3  2  THE     RIGHTS     OF     THK     PKOlM.l. 

power,  then  why  are  they  making  such  strenuous  efforts  to  get 
it  ?  But  we  are  not  left  merely  to  this  inquiry,  nor  yet  to  the 
argument,  for  an  answer  to  the  question;  we  have  their  own 
words.  At  a  National  Reform  W.  C.  T.  U.  convention  held 
at  Lakeside,  Ohio,  in  1887,  the  following  question  was  asked: 

"Will  not  the  National  Reform  movement  result  in  persecution 
against  those  who  on  some  points  believe  differently  from  the  major- 
it)',  even  as  the  recognition  of  the  Christian  religion  by  the  Roman 
power  resulted  in  grievous  persecution  against  true  Christians?" 

Answer,  by  Dr.  McAllister: — 

"Now  notice  the  fallacy  here.  The  recognition  of  the  Roman 
Catholic  religion  by  the  State,  made  that  State  a  persecuting  power. 
Why  ? — Because  the  Roman  Catholic  religion  is  a  persecuting  religion. 
If  true  Christianity  is  a  persecuting  religion,  then  the  acknowledg- 
ment of  our  principles  by  the  State  will  make  the  State  a  persecutor. 
But  if  the  true  Christian  religion  is  a  religion  of  liberty,  a  religion  that 
regards  the  rights  of  all,  then  the  acknowledgment  of  those  princi- 
ples by  the  State  will  make  the  State  the  guardian  of  all  men,  and  the 
State  will  be  no  persecutor.  True  religion  never  persecutes." 

There  is  indeed  a  fallacy  here;  but  it  is  not  in  the  question; 
it  is  in  the  answer.  That  which  made  the  Roman  State  a  per- 
secuting power,  says  the  doctor,  was  its  recognition  of  the 
Catholic  religion,  "  which  is  a  persecuting  religion."  But  the 
Roman  Catholic  religion  is  not  the  only  persecuting  religion 
that  has  been  in  the  world.  Presbyterianism  persecuted  while 
John  Calvin  ruled  in  Geneva;  it  persecuted  while  the  Cove- 
nanters ruled  in  Scotland ;  it  persecuted  while  it  held  the  power 
in  England.  Congregationalism  persecuted  while  it  had  the 
power  in  New  England.  Episcopalianism  persecuted  in  Eng- 
land and  in  Virginia.  Every  religion  that  has  been  allied  with 
the  civil  power,  or  that  has  controlled  the  civil  power,  has  been 
a  persecuting  religion;  and  such  will  always  be  the  case. 

Mr.  McAllister's  implied  statement  is  true,  that  "true 
Christianity  never  persecutes;  "  but  it  is  true  only  because  true 
Christianity  never  will  allow  itself  to  be  allied  in  any  way  with 


THE    PRESENT-DAY    SfXDAY-LAW    MOVEMENT.  233 

the  civil  power,  or  to  receive  any  support  from  it.  It  is  true 
because  true  Christianity  will  never  allow  itself  the  possession  of 
any  power  by  which  anybody  could  be  persecuted.  The 
National  Reform  Association  does  propose  to  "enforce  upon  all, 
the  laws  of  Christian  morality; ' '  it  proposes  to  have  the  govern- 
ment adopt  the  National  Reform  religion,  and  then  ' '  lay  its 
hand  upon  any  religion  that  does  not  conform  to  it;  "  and  it 
asserts  that  the  civil  power  has  the  right  ( '  to  command  the 
consciences  of  men. ' '  Now  any  such  thing  carried  into  effect 
as  is  here  plainly  proposed  by  that  association,  can  never  be 
anything  else  than  persecution. 

But  Mr.  McAllister  affirms  that  the  National  Reform  move- 
ment, if  successful,  would  not  lead  to  persecution,  "because 
true  religion  never  persecutes."  The  doctor's  argument 
amounts  only  to  this:  The  National  Reform  religion  is  the 
true  religion.  True  religion  never  persecutes.  Therefore,  to 
compel  men  to  conform  to  the  true  religion, — that  is,  the 
religion  that  controls  the  civil  power, — is  not  persecution! 

In  A.  D.  556  Pope  Pelagius  called  upon  Narses  to  compel 
certain  parties  to  obey  the  pope's  command.  Narses  refused, 
on  the  ground  that  it  would  be  persecution.  The  pope  answered 
Narses'  objection  with  this  argument: — 

"  Be  not  alarmed  at  the  idle  talk  of  some,  crying  out  against  per- 
secution, and  reproaching  the  church,  as  if  she  delighted  in  cruelty, 
when  she  punishes  evil  with  wholesome  severities,  or  procures  the 
salvation  of  souls.  He  alone  persecutes  who  forces  to  evil.  But  to 
restrain  men  from  doing  evil,  or  to  punish  those  who  have  done  it,  is 
not  persecution,  or  cruelty,  but  love  of  mankind-" — Bower's  History 
of  the  Popes,  Pelagius,  A.  D.  556. 

Compare  this  with  Dr.  McAllister's  answer,  and  find  any 
difference  in  principle  between  them  who  can.  There  is  no 
difference.  The  arguments  are  identical.  It  is  the  essential 
spirit  of  the  Papacy  which  is  displayed  in  both,  and  in  that  of 
Pope  Pelagius  no  more  than  in  that  of  Dr.  McAllister. 


234  THE     RIGHTS     OF     THE     PEOPLE. 

Another  question,  or  rather  statement,  was  this: — 
"  There  is  a  law  in  the  State  of  Arkansas  enforcing  Sunday  observ- 
ance upon  the  people,  and  the  result  has  been  that  many  good  per- 
sons have  not  only  been  imprisoned,  but  have  lost  their  property,  and 
even  their  lives."  2 

Answer,  by  Dr.  McAllister: — 

"  It  is  better  that  a  few  should  suffer  than  that  the  whole  nation 
should  lose  its  sabbath." 

This  argument  is  identical  with  that  by  which  the  Phari- 
sees in  Christ's  day  justified  themselves  in  killing  him.  It 
was  said : — 

"  It  is  expedient  for  us,  that  one  man  should  die  for  the  people,  and 
that  the  whole  nation  perish  not."  John  n  :  50. 

And  then  says  the  record: — 

"Then  from  that  day  forth  they  took  counsel  together  for  to  put 
him  to  death."  Verse  53. 

The  argument  used  in  support  of  the  claim  of  right  to  use 
this  power,  is  identical  with  that  used  by  the  Papacy  in  inaug- 
urating her  persecutions;  the  argument  in  justification  of  the 
use  of  the  power  is  identical  with  that  by  which  the  murderers 
of  Jesus  Christ  justified  themselves  in  accomplishing  that 
wicked  deed;  and  if  anybody  thinks  that  these  men  in  our  day, 
proceeding  upon  the  identical  theory,  in  the  identical  way,  and 
justifying  their  proceedings  by  arguments  identical  with  those 
of  the  Papacy  and  the  murderous  Pharisees, — if  anybody 
thinks  that  these  men  will  stop  short  of  persecution,  he  has 
vastly  more  confidence  in  apostate  humanity  than  we  have. 

We  need  not  multiply  evidences  further  to  show  that  this 
whole  religio-political  Sunday-law  movement  of  our  day  is  of 


2  This  same  thing  has  gone  on  ever  since — in  Arkansas,  Tennessee,  Georgia,  Mary- 
land, and  Massachusetts— and  still  continues.  In  the  year  1894  more  days  were  spent 
in  jail  by  Sabbath-keeping  Christians  than  there  were  days  in  the  year.  And  at  the 
time  of  writing  this  note,  in  1895,  eight  men  are  in  jail,  and  over  thirty  more  under 
indictment.  And  all  for  "sabbath  breaking."  Later:  These  eight  men  were  all  par- 
doned at  once  by  Governor  Turney.  But  the  prosecutions  are  still  going  on. 


.      THE    PRESENT-DAY    SUNDAY-LAW    MOVEMENT.  235 

the  same  piece  with  that  in  the  fourth  century.  The  theory  is 
the  same;  the  means  and  the  arguments  are  the  same  in  both; 
and  two  things  that  are  so  precisely  alike  in  the  making,  will 
be  exactly  alike  when  they  are  made.  That  in  the  fourth 
century  made  the  Papacy;  and  this  in  the  nineteenth  century 
makes  a  living  likeness  of  the  Papacy. 

Sunday  has  no  basis  whatever  as  a  civil  institution;  it  never 
had  any.  And  the  only  basis  it  has,  or  ever  had,  as  a  reli- 
gious institution,  is  the  authority  of  the  Papacy.  This  is  both 
the  law  and  the  literal  truth  in  the  case. 

It  was  perfectly  in  order,  therefore,  for  Cardinal  Gibbons 
to  indorse  a  movement  to  give  to  Sunday  the  legal  sanction 
and  support  of  the  United  States  Government,  and  thus  secure 
the  governmental  recognition  of  the  authority  of  the  Papacy. 
The  cardinal's  indorsement  has  been  heralded  by  the  Suriday- 
law  workers  throughout  the  length  and  breadth  of  the  land,  as 
a  mighty  accession  to  the  Sunday-law  movement.  And,  as  a 
matter  of  fact,  it  is  a  mighty  accession ;  but  to  what  purpose  ? 
The  following  letter  from  the  cardinal  to  Mr.  E.  E.  Franke, 
of  Jersey  City,  N.  J.,  will  show: — 


;NCE,  ) 
e,  Md.,  \ 
1889.  J 


''CARDINAL'S  RESIDENCE, 
408  North  Charles  St.,  Baltimore,  Md. 
October  3, 

"DEAR  MR.  FRANKE:  At  the  request  of  his  eminence,  the  cardi- 
nal, I  write  to  assure  you  that  you  are  correct  in  your  assertion  that 
Protestants  in  observing  the  Sunday  are  following,  not  the  Bible, 
which  they  take  as  their  only  rule  of  action,  but  the  tradition  of  the 
church.  I  defy  them  to  point  out  to  me  the  word  'Sunday'  in  the  Bible; 
if  it  is  not  to  be  found  there,  and  it  cannot  be,  then  it  is  not  the  Bible 
which  they  follow  in  this  particular  instance,  but  tradition,  and  in  this 
they  flatly  contradict  themselves. 

"The  Catholic  Church  changed  the  day  of  rest  from  the  last  to 
the  first  day  of  the  week,  because  the  most  memorable  of  Christ's 
Works  was  accomplished  on  Sunday.  It  is  needless  for  me  to  enter 
into  any  elaborate  proof  of  the  matter.  They  cannot  prove  their 
point  from  Scripture;  therefore,  if  sincere,  they  must  acknowledge 


236  THE     RIGHTS    OF    THE    PEOPLE. 

that  they  draw  their  observance  of  the  Sunday  from  tradition,  and 
are  therefore  weekly  contradicting  themselves. 

"  Yours  very  sincerely,  M.  A.  REARDON." 

This  shows  that  it  is  as  a  Roman  Catholic,  securing  honor 
to  an  institution  of  the  Papacy,  and  thus  to  the  Papacy  itself, 
that  Cardinal  Gibbons  has  indorsed  the  national  Sunday-law 
movement.  The  cardinal  understands  what  he  is  doing  a  great 
deal  better  than  Mr.  Crafts,  Mrs.  Bateham,  etal.,  understand 
what  they  were  doing.  And,  further,  the  cardinal  understands 
what  THEY  are  doing  a  great  deal  better  than  they  themselves 
do.  This  also  shows  that  those  who  signed  the  petition  for  a 
Sunday  law,  as  the  cardinal  did,  were  honoring  the  Papacy, 
as  the  cardinal  was. 

How  appropriate,  therefore,  it  is  that  Cardinal  Gibbons 
should  indorse  the  national  Sunday  bill!  How  natural,  indeed, 
that  he  should  gladly  add  his  name  to  the  number  of  peti- 
tioners in  support  of  the  movement  to  secure  legislation  in  the 
interests  of  the  church !  He  knows  just  how  his  brethren  in 
the  fourth  century  worked  the  thing.  He  knows  what  the 
outcome  of  the  movement  was  then,  and  he  knows  full  well 
what  the  outcome  of  this  movement  will  be  now.  He  knows 
that  the  theory  underlying  this  movement  is  identical  with  the 
theory  which  was  the  basis  of  that.  He  knows  the  methods 
of  working  are  the  same  now  as  they  were  then.  He  knows 
that  the  means  employed  now  to  secure  control  of  the  civil 
power  are  identical  with  the  means  employed  then,  and  he 
knows  that  the  result  must  be  the  same.  He  knows  that  when 
religion  shall  have  been  established  as  an  essential  element  in 
legislation  in  this  government,  the  experience  of  fifteen  hundred 
eventful  years,  and  '  'the  ingenuity  and  patient  care ' '  of  fifty 
generations  of  statesmen,  will  not  be  lost  in  the  effort  to  make 
the  papal  power  supreme  over  all  here  and  now,  as  was  done 
there  and  then. 
And  this  thing — this  Catholic  Sunday,  this  ' 'miner  and  sap- 


THE    PRESKNT-DAY    SUNDAY-LAW    MOVEMENT.  237 

per"  of  a  religious  despotism,  this  "coach"  of  the  Inquisition 
— this  thing  it  is  that  the  Congress  of  the  United  States  has 
taken  up  from  the  combined  ' '  Protestantism' '  of  the  United 
States  and  interpreted  into  the  commandment  of  God  and  fixed 
in  the  legislation  of  the  nation  as  ' '  the  Christian  sabbath  ' ' ! 
In  view  of  all  these  things,  why  should  not  Rome  triumph? 

And  now  the  Catholic  Church  itself  is  taking  the  lead  in 
enforcing  respect  for  the  Sunday  by  law.  The  Northwest- 
ern Chronicle,  Archbishop  Ireland's  organ,  April  5,  1895, 
announced  the  organization  of  a  "  Sunday-law  Observance 
League,"  and  prints  an  address  to  the  W.  C.  T.  U.  and  all 
friends  of  the  American  Sabbath,  concluding  with  the  following 
appeal : — 

"All  W.  C.  T.  U.'s  and  Y.'s,  churches,  pastors,  young  people's 
societies,  temperance  organizations,  Law  and  Order  Leagues,  and 
individuals,  are  called  upon  to  help  maintain  our  sabbath  as  a  day  of 
the  Lord  for  the  people,  without  regard  to  race,  sex,  or  condition,  for 
a  day  of  rest  and  worship.  To  this  end  let  us  make  sabbath  observ- 
ance week  in  Minnesota  marked  by  sermons,  public  meetings,  Sun- 
day school  exercises,  distribution  of  literature,  and  prayer  for  the 
better  enforcement  of  law  against  all  infringement  of  the  right  of  sab- 
bath observance,  and  particularly  against  that  arch-enemy  of  God  and 
man,  the  saloon." 

From  the  origin  and  history  of  Sunday  laws,  this  was,  of 
course,  to  be  expected  sooner  or  later.  And  now  that  this,  as 
well  as  all  the  rest  of  the  machinery  of  a  religious  despotism, 
has  been  made  ready  to  her  hand,  it  is  not  surprising  that  she 
assumes  the  leadership  and  sounds  the  bugle  for  the  general 
advance. 


CHAPTER  XL 

WILL   THE    PEOPLE    ASSERT    AND     MAINTAIN    THEIR    RIGHTS? 


THE  Catholic  Church  claims  infallibility.  This  claim  springs 
directly,  and  logically  too,  from  her  claim  of  the  prerogative 
of  interpreter  of  the  Scriptures. 

As  we  have  seen,  the  Congress  of  the  United  States  has 
also  assumed  and  exercised  this  prerogative.  With  Congress, 
as  certainly  as  with  the  Papacy,  the  assumption  of  this  prerog- 
ative carries  with  it  the  assertion  of  infallibility.  This  action,  of 
itself,  therefore,  placed  Congress  directly  upon  Roman  ground. 

This  action  of  Congress,  however,  was  merely  the  legisla- 
tive formula  giving  authority  to  the  interpretation  already 
determined  upon  by  combined  "  Protestantism."  This,  there- 
fore, was  nothing  else  than  the  recognition,  and  the  setting  up, 
by  ' '  Protestantism ' '  in  the  United  States,  of  a  human  tribunal 
charged  with  the  interpretation  of  Scripture,  with  the  authori- 
tative enforcement  of  that  interpretation  by  governmental 
power.  This  proceeding,  therefore,  placed  the  combined 
"Protestantism"  of  the  country  altogether  and  thoroughly 
upon  papal  ground. 

If  this  thing  had  been  done  by  the  Papacy;  if  she  had  thus 
forced  herself  and  her  interpretation  of  Scripture  upon  Con- 
gress, and  thus  got  her  religious  notions  fixed  in  the  law  to  be 
forced  upon  the  people;  there  could  be  no  surprise  at  it.  In 
so*doing  the  Papacy  would  have  been  only  acting  according  to 
her  own  native  character,  and  carrying  out  her  avowed  princi- 
•  (238) 


WILL    THE    PEOPLE     ASSERT     THEIR     RIGHTS?  239 

pies.  But  for  professed  Protestantism  to  do  it,  is  in  positive 
contradiction  of  every  principle  that  th'e  term  Protestantism 
justly  implies.  Bryce's  arraignment  of  Protestantism  on  this 
point  is  well  deserved,  and  is  decidedly  applicable  here: — 

"The  principles  which  had  led  the  Protestants  to  sever  themselves 
from  the  Roman  Church  should  have  taught  them  to  bear  with  the 
opinions  of  others,  and  warned  them  from  the  attempt  to  connect 
agreement  in  doctrine  or  manner  of  worship  with  the  necessary  forms 
of  civil  government.  Still  less  ought  they  to  have  enforced  that  agree- 
ment by  civil  penalties,  for  faith,  upon  their  own  showing,  had  no 
value  save  when  it  was  freely  given.  A  church  which  does  not  claim 
to  be  infallible  is  bound  to  allow  that  some  part  of  the  truth  may  pos- 
sibly be  with  its  adversaries;  a  church  which  permits  or  encourages 
human  reason  to  apply  itself  to  revelation,  has  no  right  first  to  argue 
with  people  and  then  to  punish  them  if  they  are  not  convinced. 

"  But  whether  it  was  that  men  only  half  saw  what  they  had  done; 
or  that,  finding  it  hard  enough  to  unrivet  priestly  fetters,  they  wel- 
comed all  the  aid  a  temporal  prince  could  give;  the  result  was  that 
religion,  or,  rather,  religious  creeds,  began  to  be  involved  with  politics 
more  closely  than  had  ever  been  the  case  before.  Through  the 
greater  part  of  Christendom  wars  of  religion  raged  for  a  century  or 
more,  and  down  to  our  own  days  feelings  of  theological  antipathy 
continue  to  affect  the  relations  of  the  powers  of  Europe.  In  almost 
every  country  the  form  of  doctrine  which  triumphed  associated  itself 
with  the  State,  and  maintained  the  despotic  system  of  the  Middle  Ages, 
while  it  forsook  the  grounds  on  which  that  system  had  been  based. 

"  It  was  thus  that  there  arose  national  churches,  which  were  to  be 
to  the  several  Protestant  countries  of  Europe  that  which  the  Church 
Catholic  had  been  to  the  world  at  large;  churches,  that  is  to  say,  each 
of  which  was  to  be  coextensive  with  its  respective  State,  was  to  enjoy 
landed  wealth  and  exclusive  political  privilege,  and  was  to  be  armed 
with  coercive  powers  against  recusants.  It  was  not  altogether  easy 
to  find  a  set  of  theoretical  principles  on  which  such  churches  might  be 
made  to  rest;  for  they  could  not,  like  the  old  church,  point  to  the 
historical  transmission  of  their  doctrines;  they  could  not  claim  to  have 
in  any  one  man,  or  body  of  men,  an  infallible  organ  of  divine  truth ; 
they  could  not  even  fall  back  upon  general  councils,  or  the  argu- 
ment, whatever  it  may  be  worth,  'Securus  indicat  orbis  terrarum.' 

"  But  in  practice  these  difficulties  were  soon  got  over,  for  the  dom- 


240  THE     RIGHTS     OF     THE     PEOPLE. 

inant  party  in  each  State,  if  it  was  not  infallible,  was  at  any  rate  quite 
sure  that  it  was  right,  and  could  attribute  the  resistance  of  other  sects 
to  nothing  but  moral  obliquity.  The  will  of  the  sovereign,  as  in 
England,  or  the  will  of  the  majority,  as  in  Holland,  Scandinavia,  and 
Scotland,  imposed  upon  each  country  a  peculiar  form  of  ivorship,  and 
kept  up  the  practices  of  medieval  intolerance  without  their  justification. 

"Persecution,  which  might  be  at  least  excused  in  an  infallible, 
Catholic,  and  apostolic  church,  was  peculiarly  odious  when  practiced 
by  those  who  were  not  Catholic;  who  were  no  more  apostolic  than 
their  neighbors;  and  who  had  just  revolted  from  the  most  ancient  and 
venerable  authority,  in  the  name  of  rights  which  they  now  denied  to 
others.  If  union  with  the  visible  church  by  participation  in  a  material 
sacrament  be  necessary  to  eternal  life,  persecution  may  be  held  a  duty* 
a  kindness  to  perishing  souls.  But  if  the  kingdom  of  heaven  be  in 
every  sense  a  kingdom  of  the  spirit,  if  saving  faith  be  possible  out  of 
one  visible  body  and  under  a  diversity  of  external  forms,  persecution 
becomes  at  once  a  crime  and  a  folly. 

' '  Therefore  the  intolerance  of  Protestants,  if  the  forms  it  took 
were  less  cruel  than  those  practiced  by  the  Roman  Catholics,  was 
also  far  less  defensible;  for  it  had  seldom  anything  better  to  allege  on 
its  behalf  than  motives  of  political  expediency,  or  more  often  the  mere 
headstrong  passion  of  a  ruler  or  a  faction,  to  silence  the  expression 
of  any  opinions  but  their  own.  .  .  .  And  hence  it  is  not  too  much 
to  say  that  the  ideas  .  .  .  regarding  the  duty  of  the  magistrate  to 
compel  uniformity  in  doctrine  and  worship  by  the  civil  arm,  may  all 
be  traced  to  the  relation  which  that  theory  established  between  the 
Roman  Church  and  the  Roman  Empire;  to  the  conception,  in  fact,  of 
an  empire  church  itself." — Holy  Roman  Empire,  chapter  18,  par.  8. 

This  shows  how  certainly  the  professed  Protestantism  and 
the  Government  of  the  United  States  have  put  themselves  upon 
papal  ground. 

THE    PIVOT    OF    INFALLIBILITY. 

Nor  yet  is  this  all.  This  prerogative  of  interpreting  the 
Scripture  was  exercised  by  the  professed  Protestantism  and  the 
Congress  of  the  United  States,  in  the  substitution  of  Sunday 
for  the  Sabbath  of  the  Lord  as  it  stands  written  in  the  com- 
mandment of  God.  And  this  is  precisely  the  thing — the  very 


WILL    THE    PEOPLE     ASSERT     THEIR     RIGHTS?  241 

point — upon  which  turns  the  argument  for  the  validity  of  the 
claim  of  infallibility  on  the  part  of  the  Papacy. 

The  supreme  point  that  marks  the  difference  between  Prot- 
estantism and  the  Papacy  is,  whether  the  Bible,  and  the  Bible 
alone,  or  the  Bible  and  tradition,  is  the  true  standard  of  faith 
and  morals.  "The  Bible,  and  the  Bible  alone,"  is  the  claim 
of  Protestantism.  ' '  The  Bible  and  tradition  ' '  is  the  claim  of 
Catholicism.  And  this  term  ' '  tradition  ' '  in  the  Catholic  sys- 
tem does  not  mean  merely  antiquity,  "  but  continuing  inspira- 
tion.''1 And  this  "  continuing  inspiration  "  is  but  another  form 
of  expression  for  ' '  infallibility. ' ' 

This  question  as  to  ( '  the  Bible  and  tradition ' '  was  not 
finally  settled  even  for  Catholicism  until  the  Council  of  Trent. 
It  was  one  of  the  leading  questions  of  that  council  as  between 
Protestantism  and  Catholicism;  and  it  was  in  the  settlement  of 
the  question  as  between  these,  that  it  was  finally  settled  for  the 
Catholic  Church  itself. 

The  very  first  question  concerning  the  faith  that  was  con- 
sidered in  the  council  was  the  one  involved  in  this  issue. 
There  was  a  strong  party,  even  of  the  Catholics,  in  the  council, 
who  were  in  favor  of  abandoning  tradition  and  adopting  the 
Scripture  only  as  the  standard  of  authority  in  faith  and  morals. 
This  was  so  largely  and  so  decidedly  held  in  the  council  that 
the  pope's  legates  wrote  to  him  that  there  was  "a  strong  tend- 
ency to  set  aside  tradition  altogether,  and  to  make  Scripture 
the  sole  standard  of  appeal. ' ' — Encyclopedia  Britannica,  Trent, 
Council  of. 

To  do  this,  however,  would  certainly  be  to  go  a  long  way 
toward  admitting  the  claims  of  the  Protestants,  and  this  would 
never  do.  This  crisis,  however,  forced  the  ultra-Catholic  por- 
tion of  the  council  to  find  some  way  of  convincing  the  others 
that  ' '  Scripture  and  tradition ' '  was  the  only  sure  ground  to 
stand  upon.  Although  two  decrees  were  passed  April  8,  1546, 
favoring  the  view  of  "  Scripture  and  tradition,"  yet  this  was 


242  THE     RIGHTS     OF     THE     PEOPLE. 

not  satisfactory.  The  question  kept  constantly  recurring  in 
the  counsel;  many  of  those  who  had  sustained  the  decrees 
were  very  uneasy  about  it.  Accordingly  Dr.  Holtzmann  writes 
thus: — 

"  The  council  was  unanimously  of  the  opinion  of  Ambrosius  Pelar- 
gus  that  at  no  price  should  any  triumph  be  prepared  for  the  Protes- 
tants to  be  able  to  say  that  the  council  had  condemned  the  teachings 
of  the  old  church.  But  this  practice  caused  endless  trouble,  without 
ever  giving  good  security.  Indeed,  it  required  for  this  crisis  that 
'  almost  divine  sagacity '  which  the  Spanish  legate  ceded  to  the  synod 
on  March  15,  1562.  .  .  . 

"Finally,  at  the  opening  of  the  last  session,  January  18,  1562,  all 
scruples  were  cast  aside;  the  archbishop  of  Rheggio  made  a  speech, 
in  which  he  openly  declared  that  tradition  stood  higher  than  the  Bible. 
For  this  reason  alone  the  authority  of  the  church  could  not  be  bound 
to  the  authority  of  the  Scriptures,  because  the  former  had  changed  the 
Sabbath  into  Sunday — not  by  the  commandment  of  Christ,  btit  solely  by 
her  own  authority.  This  destroyed  the  last  illusion,  and  it  was  hereby 
declared  tliat  tradition  signified  not  so  much  antiquity,  but  rather  con- 
tinuing inspiration." — Canon  and  Tradition,  p.  263. 

This  particular  part  of  the  archbishop's  speech  was  as  fol- 
lows : — 

"The  condition  of  the  heretics  nowadays  is  such  that  they  do 
not  appeal  to  anything  more  than  this  [the  Bible,  and  the  Bible  alone; 
the  Scriptures,  as  in  the  written  word,  the  sole  standard  in  faith  and 
morals],  to  overthrow  the  church  under  the  pretext  of  following  the 
word  of  God.  Just  as  though  the  church — the  body — were  in  conflict 
with  the  word  of  Christ;  or  as  if  the  head  could  be  against  the  body. 
Indeed,  this  very  authority  of  the  church  is  most  of  all  glorified  by 
the  Holy  Scriptures;  for  while  on  the  one  hand  the  church  recom- 
mends the  word  of  God,  declaring  it  to  be  divine,  and  presenting  it  to 
us  to  read,  explaining  doubtful  points  and  faithfully  condemning  all 
that  runs  counter  thereto;  on  the  other  hand,  by  the  same  authority,  the 
church,  the  legal  precepts  of  the  Lord,  contained  in  the  Holy  Scriptures, 
have  ceased.  The  Sabbath,  the  most  glorious  day  in  the  law,  has  been 
merged  into  the  Lord 's  day.  .  .  .  This  day  and  similar  institu- 
tions have  not  ceased  in  consequence  of  the  preaching  of  Christ  (for 
he  says  that  he  did  not  come  to  destroy  the  law,  but  to  fulfill  it);  but 


WILL    THE    PEOPLE     ASSERT     THEIR     RIGHTS?  243 

yet  they  have  been  changed,  and  that  solely  by  the  authority  of  the 
church.  Now,  if  this  authority  should  be  done  away  with  (which 
would  please  the  heretics  very  much),  who  would  there  be  to  testify 
for  the  truth  and  to  confound  the  obstinacy  of  the  heretics?" — Id. 

There  was  no  getting  around  this;  for  the  Protestants'  own 
confession  of  faith, — the  Augsburg  Confession,  1530, — had 
clearly  admitted  that  "  the  observation  of  the  Lord's  day"  had 
been  appointed  by  "the  church"  only.  As  Dr.  Holtzmann 
says,  this  argument  '  *  destroyed  the  last  illusion, ' '  because  as 
it  was  clear  that  in  observing  Sunday  upon  the  appointment  of 
the  church,  instead  of  the  Sabbath  which  stood  in  the  written 
commandment  of  the  Lord  himself,  the  Protestants  themselves 
held  not  to  ' '  the  Bible  and  the  Bible  alone, ' '  but  to  the  Bible 
and  tradition,  with  tradition  above  the  Bible.  By  this  fact  and 
this  argument,  the  uneasy  minds  in  the  council  were  set  com- 
pletely at  rest,  and  the  question  as  between  ' '  the  Bible  and  the 
Bible  alone,"  or  "the  Bible  and  tradition,"  was  finally  settled 
in  the  Catholic  Church. 

Therefore  the  papal  position  is  constructed  thus:  (a)  The 
Scripture  and  tradition  is  the  faith  of  the  Papacy;  (&)  tradition 
means  "continuing  inspiration;"  (c~)  continuing  inspiration 
means  infallibility  in  matters  of  faith  and  morals;  (d)  and  this 
is  demonstrated  in  the  fact  of  her  having  substituted  Sunday 
for  the  Sabbath  of  the  Lord  in  the  written  commandment. 
And  thus  it  is  that  the  substitution  of  Sunday  for  the  Sabbath 
is  the  pivot  upon  which  turns  the  validity  of  the  argument  as 
against  Protestants,  for  the  infallibility  of  the  Papacy. 

This  shows  how  fully  the  Protestantism  and  the  Congress  of 
the  United  States  put  themselves  upon  papal  ground,  in  their 
first  essay  in  the  exercise  of  the  prerogative  of  authoritative 
interpreter  of  the  Scripture.  They  did  it  precisely  in  the 
likeness  of  the  Papacy  by  substituting  Sunday  for  the  Sabbath 
of  the  Lord  as  in  the  written  commandment. 

And  this  is  why  it  is  that  the  Papacy,  in  taking  the  advantage 
16 


244  THE    RIGHTS     OF    THE     PEOPLE. 

which  she  has  already  taken,  and  in  following  it  up  to  whatever 
extent  that  she  may,  is  only  acting  straightforwardly  upon  her 
own  native  and  abiding  principles.  In  this  respect  the  Papacy 
is  not  in  anywise  to  blame  for  what  she  has  already  done,  nor 
for  what  she  may  do  upon  this  basis  in  the  times  to  come.  For 
assuredly  if  papal  principles  are  to  prevail,  who  is  better  qualified, 
who  has  a  better  right,  to  apply  these  principles  than  the 
Papacy  herself?  Since  the  Government  of  the  United  States 
has  been  set  bodily  upon  papal  principles  in  the  interpretation 
of  the  Constitution,  in  the  authoritative  interpretation  of  the 
Scriptures,  and  in  the  adoption  of  the  very  sign  of  papal  infal- 
libility itself,  who,  then,  is  so  well  qualified  to  guide  the  gov- 
ernment and  the  nation  in  the  new  path,  as  is  she  who  for 
nearly  sixteen  hundred  years  has  steadily  traveled  that  path  ? 

THE    ONE    GREAT    QUESTION    NOW. 

The  conclusion  of  the  whole  matter,  the  sum  of  all  that  has 
been  said,  or  that  can  be  said,  on  the  subject,  is  that  the  princi- 
ples of  the  Government  of  the  United  States  as  regards  religion 
and  the  State,  are  no  longer  American,  but  Roman;  no  longer 
Protestant,  but  papal;  no  longer  Christian,  but  antichristian. 
And  the  question  now  to  be  decided  by  every  man,  woman, 
and  child  in  the  nation  is  whether  they  will  be  American,  Prot- 
estant, and  Christian,  or  whether  they  will  be  Roman,  papal, 
and  antichristian.  Every  person  is  now  absolutely  shut  up  to 
the  decision  of  this  question.  The  very  course  of  events  will 
force  every  soul  to  the  decision  of  this  question — each  one  for 
himself.  The  people  can  no  more  escape  this  issue  than  they 
can  get  out  of  the  world. 

As  the  matter  now  stands,  every  person  in  the  United  States 
is  shut  up  to  just  one  of  two  things:  Either  to  assent  to  gov- 
ernmental interpretations  and  interference  in  religious  matters, 
or  decidedly  to  protest  against  it;  either  to  assent  to  that 
which  has  already  been  done,  and  to  the  like  of  which  is  to 


WILL" THE  PEOPLE   ASSERT  THEIR  RIGHTS?        245 

follow,  to  be  plastered  on,  layer  after  layer,  till  the  whole  nation 
shall  be  groaning  under  the  curse  of  a  religious  despotism  equal 
to  that  of  the  Dark  Ages,  or  else  decidedly  to  protest  against, 
and  refuse  any  kind  of  assent  to,  that  which  has  been  done, 
which  is  being  done,  or  any  such  that  may  follow  in  any  shape 
whatever. 

The  historian  of  the  Reformation  has  well  remarked  that 
* '  the  establishment  of  a  tribunal  charged  with  the  interpreta- 
tion of  the  Bible,  had  terminated  only  in  slavishly  subjecting 
man  to  man  in  what  should  be  most  unfettered, — conscience  and 
faith." — D'  Aubigne,  Book  XIII,  chapter  6.  Revolt  from  this 
thing  in  the  sixteenth  century  was  the  emancipation  of  man- 
kind. 

When  the  attempt  was  made,  by  means  of  a  Supreme  Court 
decision  perverting  the  Constitution,  to  accomplish  throughout 
the  whole  nation  the  enslavement  of  man  to  man  in  all  his  bod- 
ily interests — for  even  the  slaveholder  left  free  the  conscience 
and  faith  of  his  slaves — uncompromising  opposition  to  it  was 
the  emancipation  of  a  whole  race  and  the  assured  freedom  of 
the  nation. 

And  now,  when  by  both  these  means — when  Tby  a  Supreme 
Court  decision  perverting  the  Constitution,  and  the  establish- 
ment of  a  tribunal  charged  with  the  interpretation  of  the  Bible 
— this  powerful  attempt  is  made  to  bring  about  once  more  the 
enslavement  of  man  to  man  in  that  which  should  be  most  un- 
fettered, conscience  and  faith,  nothing  less  than  absolutely 
uncompromising  opposition  to  this  thing  in  every  phase  of  it 
from  beginning  to  end — can  secure  the  liberty  of  the  individ- 
ual, of  the  nation,  or  of  mankind. 

And  who  can  refuse  uncompromisingly  to  oppose  it  ?  With 
the  example  of  Christianity  as  it  started  in  the  world;  of  the 
Reformation  as  it  arose  in  the  sixteenth  century;  of  the  fathers 
who  made  this  nation;  of  the  opposition  to,  and  not  merely  the 
reversal,  but  the  annihilation  of,  the  Dred  Scott  decision — with 


246  THE    RIGHTS     OF    THE    PEOPLE. 

all  this  history  and  all  these  examples  before  us,  which  the 
conscience  and  better  judgment  of  all  men  approve,  how  can 
any  man  hesitate  to  enlist  all  his  energies  of  body,  soul,  and 
spirit,  in  uncompromising  opposition  to  this  monstrous  evil  so 
treacherously  conceived  and  so  powerfully  maintained? 

So  much  for  the  necessity  of  such  opposition.  But  as  this 
book  is  a  study  of  the  rights  of  the  people,  it  will  be  proper 
here  to  set  forth  the  rights  by  which  the  people,  with  courage, 
consistency,  and  righteousness,  can  inaugurate,  and  forever 
carry  on,  this  uncompromising  opposition. 

DIVINE    RIGHT. 

It  is  the  divine  right  of  every  man  to  believe  or  not  believe, 
to  be  religious  or  not  religious,  as  he  shall  choose  for  himself. 
God  himself,  in  Jesus  Christ,  has  said:  "  If  any  man  hear  my 
words,  and  believe  not,  I  judge  him  not;  for  I  came  not  to 
judge  the  world,  but  to  save  the  world.  He  that  rejecteth  me, 
and  receiveth  not  my  words,  hath  one  that  judgeth  him;  the 
word  that  I  have  spoken,  the  same  shall  judge  him  in  the 
last  day."  John  12  147,  48.  Thus  the  God  of  heaven,  the 
Author  of  Christianity,  has  left  every  soul  free  to  believe  or 
not  believe,  to  receive  or  reject,  his  words,  as  the  man  may 
choose  for  himself.  And  when  any  man  chooses  not  to  believe, 
and  chooses  to  reject  his  word,  the  Lord  does  not  condemn 
him. 

Whoever,  therefore,  would  presume  to  exercise  jurisdiction 
over  the  religious  belief  or  observances  of  any  man,  or  would 
compel  any  man  to  conform  to  the  precepts  of  any  religion, 
or  to  comply  with  the  ceremonies  of  any  religious  body,  or 
would  condemn  any  man  for  not  so  complying,  does  in  that 
thing  put  himself  above  Jesus  Christ,  and,  indeed,  above  God, 
for  he  exercises  a  prerogative  which  God  himself  refuses  to 
exercise. 

The  word  of  God  is  the  word  of  life.     To  whomsoever  that 


WILL   THE    PEOPLE    ASSERT    THEIR    RIGHTS  ?  247 

word  comes,  whosoever  heareth  it,  to  him  in  that  word  there 
comes  life  from  God — eternal  life.  Then  he  who  rejects  that 
word  rejects  life.  He  who  rejects  life  does  in  that  very  thing 
choose  death.  And  he  who  chooses  death  by  the  rejection  of 
life  does  in  that  pass  judgment  of  death  upon  himself.  And 
so  it  stands  written,  ' '  It  was  necessary  that  the  word  of  God 
should  first  have  been  spoken  to  you;  but  seeing  ye  put  it 
from  you,  and  judge  yourselves  unworthy  of  everlasting  life, ' ' 
etc.  Acts  13:46.  Thus  it  is  that  God  judges  no  man  for 
rejecting  his  word;  and  this  is  how  it  is  that  that  word  shall 
judge  men  in  the  last  day.  •  "  In  that  day  "  that  word  of  life 
will  stand  there  as  the  witness  to  all  that  eternal  life  came  to 
all,  but  was  rejected,  and  nothing  but  death  remains.  And 
when  the  death  is  received,  each  one  receives  simply  what  he 
has  chosen,  and  in  that  the  God  of  love  does  not  condemn, 
but  is  sorry  instead. 

Now  to  the  Christian  church  is  committed  this  word  of  life 
as  she  is  sent  into  the  world.  She  is  to  "  preach  the  word." 
To  her  it  is  written,  "  Do  all  things  without  murmurings  and 
disputings;  that  ye  may  be  blameless  and  harmless,  the  sons 
of  God,  without  rebuke,  in  the  midst  of  a  crooked  and  perverse 
^nation,  among  whom  ye  shine  as  lights  in  the  world;  holding 
forth  the  word  of  life. ' '  Phil.  2  :  14-16.  Thus  the  true  church 
is  in  the  world  "in  Christ's  stead"  (2  Cor.  5  :  20),  to  hold 
forth,  to  bring  to  men,  the  word  of  life.  In  so  doing  she 
judges  no  one,  she  condemns  no  one,  she  sets  at  naught  no 
one,  for  she  '  'is  subject  unto  Christ ' '  in  everything  (Eph.  5 :  24), 
and  he  ever  says,  ' (  If  any  man  hear  my  words,  and  believe 
not,  I  judge  [condemn]  him  not." 

In  this  word  Christ  also  establishes  the  divine  right  of  every 
man,  at  his  own  free  choice,  to  dissent  from,  and  to  disregard 
in  every  way,  any  doctrine,  dogma,  ordinance,  rite,  or  insti- 
tution of  any  church  on  earth.  And  no  man  can  ever  rightly 
be  molested  or  disquieted  in  any  way  whatever  in  the  free 
exercise  of  this  divine  right. 


248  THE  RIGHTS  OF  THE  PEOPLE. 

A  SUBTLE  SUBTERFUGE. 

Professedly  this  right  has  always  been  recognized  by  both 
Catholicism  and  the  different  sects  of  Protestantism,  but  in 
nearly  every  instance  the  profession  of  recognition  of  the  right 
has  been  only  a  pretense;  for,  while  professing  to  recognize 
the  right  in  one  way,  in  another  way,  and  by  a  sheer  subter- 
fuge, it  has  been  denied  and  attempt  made  to  sweep  it  entirely 
away.  This  subterfuge  is  for  the  church  to  get  her  dogmas  or 
institutions  recognized  in  the  law,  and  then  demand  obedience 
to  the  law,  throwing  upon  the  dissenter  the  odium  of  "law- 
lessness and  disrespect  for  the  constituted  authorities,"  while 
she  poses  as  the  champion  of  ' '  law  and  order, ' '  the  ' '  con- 
servator of  the  State,  and  the  stay  of  society' ' ! 

Of  all  the  hypocritical  pretenses  that  were  every  employed, 
this  is  perhaps  the  subtlest,  and  is  certainly  the  meanest.  It 
flourished  throughout  the  Middle  Ages,  when  anything  and 
everything  that  the  church  could  invent  was  thus  forced  upon 
the  people.  Its  slimy  trail  can  be  traced  throughout  the  his- 
tory of  the  * '  Protestant ' '  sects,  in  thus  forcing  upon  the  people 
such  peculiar  institutions  as  were  characteristic  of  the  sect  that 
could  obtain  control  of  the  law.  And  now  it  is  made  to  flourish 
again,  by  all  the  sects  together,  in  thus  forcing  upon  the  people 
the  one  thing  in  which  they  are  all  agreed,  and  in  which  they 
have  obtained  control  of  the  law,1  the  observance  of  Sunday, 
"the  Christian  sabbath,"  supported  by  such  auxiliary  organi- 
zations, such  wheels  within  wheels,  as  the  National  Reform 
Association,  the  American  Sabbath  Union,  the  "Law  and  Order 
Leagues,"  the  "Civic  Federations,"  W.  C.  T.  U.,  Y.  M.  C.  A., 
Y.  P.  S.  C.  E.,  and  so  on  through  the  rest  of  the  alphabet. 

1 "  By  a  sort  of  factitious  advantage,  the  observers  of  Sunday  have  secured  the  aid 
of  the  civil  law,  and  adhere  to  that  advantage  with  great  tenacity,  in  spite  of  the  clamor 
for  religious  freedom  and  the  progress  that  has  been  made  in  the  absolute  separation 
of  Church  and  State.  .  .  .  And  the  efforts  to  extirpate  the  advantage  above  men- 
tioned, by  judicial  decision  in  favor  of  a  civil  right  to  disregard  the  change,  seem  to 
me  quite  useless." — U.  S.  Circuit  Court.  See  "  Due  Process  of  Law,"  pp.  31,  116. 


WILL   THE    PEOPLE    ASSERT    THEIR    RIGHTS?  249 

Sunday,  not  only  according  to  their  own  showing,  but  by 
every  other  fair  showing  that  can  be  made,  is  a  religious  insti- 
tution, a  church  institution,  only.  This  they  all  know  as  well 
as  they  know  anything.  And  yet  every  one  of  these  organi- 
zations, principal  or  auxiliary,  is  working  constantly  to  get 
this  church  institution  fixed,  and  more  firmly  fixed,  in  the  law, 
with  penalties  attached  that  are  more  worthy  of  barbarism  than 
of  civilization;  and  then,  when  anybody  objects  to  it,  they  all 
cry  out  that  ''it  is  not  a  question  of  religion,  it  is  simply  a 
question  of  law.  We  are  not  asking  any  religious  observance; 
all  that  we  ask  is  respect  for  law  "  ! ! 

The  Christian,  Protestant,  and  American  answer  to  all  this 
is  that  neither  the  Sunday  institution  nor  any  .other  religious 
or  ecclesiastical  institution,  has  any  right  to  a  place  in  the  law. 
And  even  when  it  is  put  into  the  law,  this  does  not  take  away 
the  right  of  dissent.  The  divine  right  of  dissent  from  religious 
or  ecclesiastical  institutions  abides  ever  the  same,  whether  the 
institution  is  out  of  the  law  or  in  the  law.  And  when  the  insti- 
tution is  fixed  in  the  law,  the  right  of  dissent  then  extends  to 
that  law.  The  subterfuge  cannot  destroy  the  right. 

THE   COURTS    INDORSE   THE   SUBTERFUGE. 

From  the  church  organizations  the  courts  have  caught  up 
this  cry.  And,  though  acknowledging  that  the  Sunday  insti- 
tution is  religious;  that  it  is  enacted  and  enforced  at  the  will 
of  the  church;  and  that  the  logic  of  it  is  the  union  of  Church 
and  State;  yet  they  insist  that,  as  it  is  in  the  law,  and  the  law 
is  for  the  public  good,  no  right  of  dissent  can  be  recognized, 
but  the  dissenter  "may  be  made  to  suffer  for  his  defiance 
by  persecutions,  if  you  call  them  so,  on  the  part  of  the  great 
majority."2 

This  argument  is  as  old  as  is  the  contest  for  the  right  of 


-  These  are  the  very  words  of  the  United  States  Circuit  Court  for  the  western  dis- 
trict of  Tennessee,  in  August,  1891,  and  in  behalf  of  Sunday,  too.  See  "Due  Process 
of  Law,"  where  the  decision  is  printed  in  full. 


250  THE     RIGHTS     OF    THE     PEOPLE. 

the  free  exercise  of  religious  belief.  It  was  the  very  position 
occupied  by  Rome  when  the  disciples  of  Christ  were  sent  into 
the  world  to  preach  religious  freedom  to  all  mankind.  Reli- 
gious observances  were  enforced  by  the  law.  The  Christians 
asserted  and  maintained  the  right  to  dissent  from  all  such 
observances,  and,  in  fact,  from  every  one  of  the  religious 
observances  of  Rome,  and  to  believe  religiously  for  themselves, 
though  in  so  doing  they  totally  disregarded  the  laws,  which, 
on  the  part  of  the  Roman  State,  were  held  to  be  beneficial  to 
the  population.  Then,  as  now,  it  was  held  that,  though  reli- 
gious belief  was  the  foundation  of  the  custom,  yet  this  was  no 
objection  to  it,  because  it  had  become  a  part  of  the  legal  system 
of  the  government,  and  was  enforced  by  the  State  for  its  own 
good.3  But  Christianity  then  refused  to  recognize  any  valid- 
ity in  any  such  argument,  and  so  it  does  now. 

When  Paganism  was  supplanted  by  the  Papacy  in  the 
Roman  Empire,  the  same  argument  wras  again  brought  forth 
to  sustain  the  papal  observances  which  were  enforced  by  impe- 
rial law;  and  through  the  whole  period  of  papal  supremacy 
Christianity  still  refused  to  recognize  any  validity  whatever  in 
the  argument. 

Under  the  Calvinistic  theocracy  of  Geneva  the  same  argu- 
ment was  again  used  in  behalf  of  religious  oppression.  In 
England  the  same  argument  was  used  against  the  Puritans  and 
other  dissenters  in  behalf  of  religious  oppression  there.  In 
New  England,  under  the  Puritan  theocracy,  the  same  argu- 
ment was  used  in  behalf  of  religious  oppression,  and  to  justify 
the  Congregationalists,  who  had  control  of  legislation,  in  com- 
pelling the  Baptists  and  the  Quakers,  under  penalty  of  banish- 

3  "  The  pagan  religion  was,  in  truth,  so  closely  interwoven  with  all  the  arrange- 
ments of  civil  and  social  life  that  it  was  not  always  easy  to  separate  and  distinguish 
the  barely  civil  or  social  from  the  religious  element.  Many  customs  had  really  sprung 
from  a  religious  source,  whose  connection,  however,  with  religion  had  long  been  for- 
gotten by  the  multitude,  and,  remembered  only  by  a  few  learned  antiquarians,  lay  too 
far  back  to  be  recalled  in  the  popular  consciousness." — Neander,  Church  History^  Vol> 
7,  sec.  3,  par.  77. 


WILL    THE    PEOPLE     ASSERT     THEIR     RIGHTS?  251 

ment  and  even  of  death,  to  conform  to  the  religious  observances 
of  the  Congregationalists. 

"  The  rulers  of  Massachusetts  put  the  Quakers  to  death  and  ban- 
ished the  Antinomians  and  '  Anabaptists ,;  not  because  of  their  reli- 
gious tenets,  but  because  of  their  violations  of  the  civil  laws.  This  is 
the  justification  which  they  pleaded,  and  it  was  the  best  they  could 
make.  Miserable  excuse!  But  just  so  it  is;  wherever  there  is  such  a 
union  of  church  and  State,  heresy  and  heretical  practices  are  apt  to 
become  violations  of  the  civil  code,  and  are  punished  no  longer  as 
errors  in  religion,  but  infractions  of  the  laws  of  the  land.  So  the 
defenders  of  the  Inquisition  have  always  spoken  and  written  in  justifi- 
cation of  that  awful  and  most  iniquitous  tribunal." — Baird' 's  Religion 
in  America, p.  04,  note. 

In  short,  this  argument — this  ' '  miserable  excuse ' '  — whether 
made  by  churches  or  by  courts,  is  the  same  old  serpent  (Rev. 
12:9,  12,  14)  that  tortured  the  Chrjstians  to  death  under  Pagan 
Rome;  that  burnt  John  Huss  at  Constance,  and  Michael  Ser- 
vetus  at  Geneva;  that  whipped  and  banished  the  Baptists,  and 
banished  and  hanged  the  Quakers,  in  New  England.  Whether 
used  by  the  Roman  State  and  the  Catholic  Church,  or  by  other 
States  and  other  churches,  in  the  early  centuries  or  in  these  last 
years  of  the  nineteenth  century  of  the  Christian  era,  that  argu- 
ment is  ever  the  same  old  serpent,  and  Christianity  has  always 
refused  to  recognize  any  validity  whatever  in  it,  and  it  always 
will. 

THE   STATE   A    PARTISAN    OF    THE    CHURCH. 

We  have  proved  by  the  express  words  of  Christ  the  divine 
right  of  dissent  in  all  religious  things:  that  any  man  has  the 
divine  right  to  dissent  from  any  and  every  religious  doctrine  or 
observance  of  any  body  on  earth.  So  long  as  civil  govern- 
ment keeps  its  place,  and  requires  of  men  only  those  things 
which  pertain  to  Caesar, — things  civil, — so  long  there  will  be 
neither  dissent  nor  disagreement,  but  peace  only,  between  the 
government  and  all  Christian  sects  or  subjects.  But  just  as 
soon  as  civil  government  adopts  any  church  institution  and 


252  THE     RIGHTS     OF    THE     PEOPLE. 

makes  it  a  part  of  the  law,  it  makes  itself  the  partisan  of  a 
religious  party,  and  sets  itself  up  as  the  champion  of  religious 
observances.  And  just  then  this  right  of  dissent  in  religious 
things  is  extended  to  the  authority  of  the  government,  in  so  far 
as  that  authority  is  thus  exercised.  And  so  far  there  will  be 
dissent  on  the  part  of  every  Christian  in  the  government. 

Let  it  be  repeated :  When  the  State  undertakes  to  enforce 
the  observance  of  any  church  ordinance  or  institution,  and  thus 
makes  itself  the  champion  and  partisan  of  the  church,  then  the 
inalienable  right  of  men  to  dissent  from  CHURCH  doctrines  and 
to  disregard  church  ordinances  and  institutions,  is  extended  to 
the  '  'authority ' '  of  the  STATE  in  so  far  as  it  is  thus  exercised. 
The  ''authority"  of  the  State  in  such  case  is  just  no  authority 
at  all;  because  no  earthly  government  can  ever  by  any  pretext 
have  any  authority  in  matters  of  religion  or  religious  observ- 
ances. 

Sunday  observance  is  in  itself  religious,  and  religious  only. 
The  institution  is  wholly  ecclesiastical.  The  creation  of  the 
institution  was  for  religious  purposes  only.  The  first  law  of 
government  enforcing  its  observance  was  enacted  with  religious 
intent;  such  has  been  the  character  of  every  Sunday  law  that 
ever  was  made,  and  such  its  character  is  now  recognized  to  be 
by  both  churches  and  courts.  It  is  therefore  the  divine  right 
of  every  man  utterly  to  ignore  the  institution,  to  disregard  its 
observance,  and  to  dissent  from  the  authority  which  instituted 
or  enjoins  it.  And  when  any  State  or  civil  government  makes 
itself  the  partisan  of  the  ecclesiastical  body  which  instituted  it, 
and  the  champion  of  the  ecclesiastical  authority  which  enjoins 
it,  and  enacts  laws  to  compel  men  to  respect  it  and  observe  it, 
that  State  does  attempt  to  compel  submission  to  church  author- 
ity, and  conformity  to  church  discipline,  and  does  thereby 
invade  the  inalienable  right  of  dissent  from  church  authority 
and  church  discipline.  If  the  State  can  rightfully  do  this  in 
one  thing,  it  can  do  so  in  all;  and  therefore  in  doing  this  it 


WILL   THE    PEOPLE     ASSERT     THEIR    RIGHTS?  253 

does,  in  principle  and  in  effect,  destroy  all  freedom  of  religious 
thought  and  action.  Men  are  thereby  compelled  either  to 
submit  to  be  robbed  of  their  inalienable  right  of  freedom  of 
thought  in  religious  things,  or  else  to  disregard  the  authority 
of  the  State.  And  no  Christian,  and  no  man  of  sound  princi- 
ple and  honest  conviction,  will  ever  hesitate  as  to  which  of  the 
two  things  he  will  do. 

Thus  it  is  clear  that  by  divine  right  every  man  can,  with 
courage,  consistency,  and  righteousness,  engage  in  uncompro- 
mising opposition  to  this  movement  to  establish  a  national 
religious  despotism. 

THE   NATURAL   AND    CONSTITUTIONAL    RIGHT. 

This  is  also  the  natural  right  of  every  man.  On  this  read 
again  paragraph  I  of  the  ' '  Memorial  and  Remonstrance  of  the 
People  of  Virginia, ' '  page  95 ;  the  "Act  Establishing  Freedom  of 
Religion  in  Virginia,"  page  90;  and  the  points  on  pages  52-55. 

This  is  also  the  constitutional  right  of  every  man  in  the 
United  States.  This  has  been  demonstrated- in  chapter  5. 

Here,  however,  is  where  the  issue  is  joined.  Here  is  where 
the  crisis  is  reached.  Because  the  Supreme  Courts  of  all  the 
States  that  have  such  laws  have  declared  them  to  be  constitu- 
tional;4 a  Circuit  Court  of  the  United  States  has  declared  that 
' '  persecution ' '  in  the  States  accordingly  is  ' '  due  process  of 
law;"  and  the  United  States  Supreme  Court  has  declared  that 
"  the  establishment  of  the  Christian  religion,"  is  the  meaning 
of  the  national  Constitution,  and  that,  accordingly,  "this  is  a 
Christian  nation."  So  far,  therefore,  as  Supreme  Courts 
are  concerned — State  and  national — this  constitutional  right 
has  been  swept  away: 

4  The  Supreme  Court  of  California  first  decided  all  such  laws  unconstitutional. 
Judge  Stephen  J.  Field,  now  of  the  United  States  Supreme  Court,  was  a  member  of 
the  court  and  dissented.  Afterward  changes  came  in  the  court,  Judge  Field  became 
chief  justice,  the  question  was  brought  up  again,  and  such  laws  were  declared  to  be 
constitutional.  Then  the  people  of  California  afterwards  took  up  the  question  and 
annulled  all  such  decisions  by  a  majority  of  over  17,000. 


254  TI1E     RIGHTS     OF    THE     PEOPLE. 

As  for  the  inferior  courts  in  the  States — the  judges,  jus- 
tices, prosecuting  attorneys,  etc. — instead  of  reading  the  Con- 
stitution for  themselves  and  supporting  it,  as  they  have  taken 
a  solemn  oath  to  do,  they  take  somebody  else's  reading  of  it 
and  support  somebody  else's  interpretation  of  it,  while  their 
own  conscience,  their  own  sober  judgment,  and  the  plain  word 
of  the  Constitution,  all  tell  them  that  such  interpretation  is 
clearly  wrong.5  They  argue  that  as  "  the  Supreme  Court  has 
decided  that  the  law  is  constitutional,  it  is  not  for  us  to  decide 
differently,  whatever  our  own  views  of  the  case  may  be, ' '  etc. 

General  Jackson,  when  President  of  the  United  States,  rec- 
ognized no  such  doctrine.  The  Supreme  Court  declared  to  be 


6  There  are  noble  exceptions  to  this  course,  though  they  are  very,  very  few.  One 
of  these,  such  as  every  one  ought  to  be,  in  a  private  letter  dated  December  22,  1891, 
writes  as  follows: — 

"When  I  was — from  1878  to  1887 — the  Attorney  General  of 1  absolutely  refused  to 

make  my  office  the  medium  through  which  to  indict  and  punish  men  who  toiled  six 
days  and  then  asserted  their  right  to  worship  God  under  their  own  vine  and  fig  tree, 
according  to  the  dictates  of  conscience. 

"The  very  moment  the  Legislatures  of  American  States  declare  (and  that  declaration 
is  carried  into  effect)  that  men  shall  (without  reference  to  their  creed)  have  one  Sunday, 
and  that  the  Sunday  of  modern  Christianity,  commonly  known  as  the  sabbath,  shall 
be  alike  kept  holy  by  every  man  under  a  penalty  for  its  violation,  you  sound  the  death 
knell  of  American  republicanism  and  open  the  way  for  a  religious  inquisition  as  infa- 
mous, devilish,  and  ungodly  as  was  that  of  Italy.  Our  forefathers  with  prophetic  vision 
saw  the  danger  of  commingling  the  affairs  of  Church  and  State,  and,  with  a  wisdom  as 
consummate  as  it  was  politic,  they  laid  the  very  foundation  of  this  government 
upon  the  idea  that  religion  should  never  have  any  part  or  identity  with  the  civic 
machinery.  .  .  . 

"Ten  or  twelve  years  ago,  when  I  was  the  owner  and  editor  of  the  daily here 

(being  Attorney  General  at  the  same  time),the  preachers  howled  from  their  pulpits  on  the 
duty  of  the  Attorney  General  to  rigidly  enforce  the  Sunday  law.  I  replied  to  their 
criticisms,  and  I  think  I  got  the  best  of  the  argument— at  all  events  I  did  not  yield  my 
principles,  and  defied  them  to  carry  out  the  threat  to  impeach  me.  They  did  not  do 

so;  and  from  that  day  to  this,  the  men  of worship  God  in  their  own  way,  and  each 

creed  selects  its  own  day.  The  churches  are  protected  in.  their  right  to  worship  as 
they  may  deem  proper;  but  the  man  who  does  not  feel  like  going  to  church  on  Sunday, 
but  prefers  to  do  as  seems  best  for  himself,  is  allowed  to  go  his  way  rejoicing,  with  none 
to  make  him  afraid.  All  Sunday  laws  ought  to  be  wiped  from  the  statute  books,  and 
every  man  left  free  to  pursue  the  line  of  worship  dictated  by  his  conscience. 

"Oh,  if  it  were  possible  to  rebuild  the  public  sentiment  of  this  country,  and  model 
it  after  the  plan  of  [Richard  M.]  Johnson,  Jefferson,  Washington,  and  the  men  of  their 
day  and  generation!  " 


WILL    THE    PEOPLE    ASSERT     THEIR     RIGHTS?  255 

constitutional  a  law  which,  as  such,  fell  to  him  for  enforcement. 
Stern  Old  Hickory  refused  to  enforce  it.  He  argued,  and 
rightly,  that  he  had  taken  no  oath  to  support  Supreme' Court 
decisions,  or  other  people's  interpretation  of  the  Constitution, 
but  the  Constitution  itself,  and  declared  the  American  funda- 
mental principle  that — 

"Each  public  officer  who  takes  an  oath  to  support  the  Constitu- 
tution,  swears  that  he  will  support  it  as  he  understands  it,  and  not  as 
it  is  understood  by  others." 

The  nation  stood  by  General  Jackson  in  this,  and  com- 
pletely killed  that  decision,  and  the  law  which  it  pronounced 
constitutional.  Again,  the  soundness  of  this  principle,  and 
the  unsoundness  of  this  position  taken  by  the  inferior  courts,  is 
seen  from  the  following: — 

"To  whom  does  it  belong  to  interpret  the  Constitution? — Any 
question  arising  in  a  legal  proceeding  as  to  the  meaning  and  applica- 
tion of  this  fundamental  law  will  evidently  be  settled  by  the  courts  of 
law.  Every  court  is  equally  bound  to  pronounce,  and  competent  to 
pronounce,  on  such  questions,  a  State  court  no  less  than  a  Federal 
court;  but  as  all  the  more  important  questions  are  carried  by  appeal  to 
the  Supreme  Federal  Court,  it  is  practically  that  court  whose  opinion 
finally  determines  them."6 

"  The  so-called  'power  of  annulling  an  unconstitutional  statute' 
is  a  duty  rather  than  a  power,  and  a  duty  incumbent  on  the  humblest 
State  court  when  a  case  raising  the  point  comes  before  it,  no  less  than 
on  the  Supreme  Federal  Court  at  Washington.  When,  therefore, 
people  talk,  as  they  sometimes  do,  even  in  the  United  States,  of  the 
Supreme  Court  as  'the  guardian  of  the  Constitution,'  they  mean  noth- 
ing more  than  that  it  is  the  final  court  of  appeal,  before  which  suits 
involving  constitutional  questions  may  be  brought  up  by  the  parties  for 
decision.  In  so  far  the  phrase  is  legitimate.  But  the  functions  of  the 
Supreme  Court  are  the  same  in  kind  as  those  of  all  other  courts,  State 
as  well  as  Federal.  Its  duty  and  theirs  is  simply  to  declare  and  apply 
the  law;  and  when  any  court,  be  it  a  State  court  of  first  instance,  or 
the  Federal  court  of  last  instance,  finds  a  law  of  lower  authority  [the 
Legislature]  clashing  with  a  law  of  higher  authority  [the  Constitution], 

6  Final  only  as  the  particular  case  on  trial,  of  course.    See  pp.  145,  146,  147. 


WILL    THE    PEOPLE  ASSERT  THEIR  RIGHTS.  257 

it  must  reject  the  former  as  being  really  no  law,  and  enforce  the  latter." 
— Bryce,  American  Commonwealth,  Vol.  I,  pp.  374.,  252. 

FAILURE     OF    THE     SWORN     AGENTS    OF    THE    PEOPLE. 

This  is  fundamental,  American,  constitutional  ground.  And 
it  is  not  only  a  fearful  thing,  but  a  treacherous  thing  as  well,  for 
any  officer,  chosen  by  the  people  and  therefore  responsible  to 
the  people,  to  give  his  oath  to  the  people  to  stand  faithful  to 
their  instructions  as  given  to  him  in  the  Constitution,  and  then  ig- 
nore and  abandon  these  instructions  altogether,  putting  between 
himself  and  the  people  another  set  of  the  servants  of  the  peo- 
ple— who,  equally  with  himself,  are  responsible  to  the  people — 
and  adopt  their  interpretations  instead  of  the  plain  words  of 
the  Constitution  which  he  has  given  his  oath  to  support.  An 
illustration  will  be  in  place.  The  people  of  Tennessee  in  the 
Bill  of  Rights  of  their  Constitution  have  said  this : — 

"SEC.  3.  That  all  men  have  a  natural  and  indefeasible  right  to 
worship  Almighty  God  according  to  the  dictates  of  their  own  con- 
science; that  no  man  can,  of  right,  be  compelled  to  attend,  erect,  or 
support  any  place  of  worship,  or  to  maintain  any  ministry  against  his 
consent;  that  no  human  authority  can,  in  any  case  whatever,  control  or 
interfere  with  the  rights  of  conscience;  and  that  no  preference  shall 
ever  be  given,  by  law,  to  any  religious  establishment  or  mode  of  wor- 
ship." 

Now  to  say  that  these  instructions  need  to  be  interpreted  is 
an  insult  to  anybody  who  can  read  the  English  language.  They 
need  only  to  be  accepted  as  they  stand.  Yet,  in  spite  of  these 
plain  words,  a  Sunday  law  is  on  the  statute  books  of  that  State, 
and  the  State  Supreme  Court  has  declared  it  to  be  constitu- 
tional, because  ''Christianity  is  part  of  the  common  law"  of  that 
State.  Thus  that  Supreme  Court  by  its  interpretation  has 
given  preference  by  common  law  to  the  Christian  mode  of 
worship,  in  spite  of  the  plain  words  that  no  such  thing  shall 
ever  be  done.  The  other  courts  and  officers  of  the  State  who 
have  sworn  to  support  that  Constitution,  have,  instead,  adopted 


258  THE    RIGHTS     OF    THE     PEOPLE. 

and  supported  this  interpretation:  and  for  years  Christian  men 
have  been  indicted  by  the  dozen,  and  prosecuted,  fined,  and  im- 
prisoned solely  for  disregarding  Sunday,  which  is  a  part  of  the 
<l  Christianity"  which  by  this  interpretation  is  made  part  of  the 
common  law  of  that  State. 

This  is  but  a  fair  sample  of  the  judicial  situation  in  all  the 
States  of  the  Union,  with  the  exception  of  two  or  three  at  most. 
And  all  on  account  of  Supreme  Court  decisions  strictly  analo- 
gous to  this,  supported  by  officials  who  forget  their  oath  to 
support  the  Constitution,  and,  instead,  blindly  support  decisions 
whicl  are  absolutely  subversive  of  the  Constitution  and  of  all 
the  rights  of  the  people. 

THE    REMEDY. 

When  the  servants  of  the  people  who  have  been  selected 
and  sworn  for  the  sole  purpose  of  maintaining  the  constitu- 
tional provisions  which  the  people  have  established  for  the 
security  of  their  rights,  fail  so  completely  to  do  what  they  have 
been  appointed  to  do,  and  really  subvert  the  Constitution  instead 
of  support  it,  then  the  right  to  do  this  themselves,  in  their  own 
proper  persons,  rests  by  a  double  tenure  with  the  people. 

First,  it  is  always  the  right  and  just  prerogative  of  the 
people  to  set  the  actions  of  these  servants  alongside  of  the 
Constitution  and  judge  whether  they  have  indeed  supported  it 
or  failed  to  support  it.  Remember  the  words  of  Dickinson, 
quoted  on  page  144,  that  "the  people  must  restore  things  to 
that  order  from  which  their  functionaries  have  departed;  "  and 
of  Wilson,  on  page  80,  that  "  the  supreme  power  resides  in  the 
people,  and  they  never  part  with  it; ' '  the  words  of  Bryce, 
quoted  on  pages  1 50,  151,  that  ' '  the  people  censure  any 
interpretation  which  palpably  departs  from  the  old  lines;" 
and  the  words  of  Lincoln,  quoted  on  page  141,  that  "the  peo- 
ple of  these  United  States  are  the  rightful  masters  of  both 
Congresses  and  courts;  not  to  overthrow  the  Constitution,  but 
to  overthrow  the  men  who  pervert  the  Constitution. ' ' 


WILL   THE    PEOPLE     ASSERT     THEIR     RIGHTS?  259 

This  right  rests  always  with  the  people,  for  them  freely  to 
exercise.  But  when  the  agents  which  they  have  appointed  for 
the  very  purpose  of  detecting  unconstitutional  laws,  and  pro- 
tecting the  people  from  their  injustice — when  these  agents 
themselves  not  only  fail  to  do  this,  but  actually  aid  in  fastening 
unconstitutional  statutes  upon  the  people,  then  the  right  of  the 
people  to  test  the  statutes  by  the  Constitution,  being  '  *  incapa- 
ble of  annihilation,"7  returns  to  the  people,  and  rests  with 
them,  by  additional  tenure,  and  it  then  of  right  devolves  upon 
the  people,  themselves  and  for  themselves,  and  each  one  for 
himself,  to  decide  the  case,  declare  such  law  unconstitutional 
and  void,  and  treat  it  so  in  all  their  actions. 

This  is  not  to  say,  nor  even  to  imply,  that  every  man  is  at 
liberty  to  disregard,  or  disrespect,  whatever  action  of  the  gov- 
ernment he  may  not  personally  agree  with.  It  is  to  say  that  it 
is  absolutely  incumbent  on  every  citizen  to  be  so  well  read  in 
the  Constitution  and  the  Declaration  that  he  shall  know  for 
himself  the  limitations  upon  the  government,  and  act  accord- 
ingly. Every  citizen  must  hold  himself y  as  well  as  the  govern- 
ment, strictly  to  the  Constitution.  The  Constitution  is  a 
limitation,  not,  indeed,  upon  the  power  of  the  people,  except 
in  the  prescribed  way,  but  upon  the  passions  and  caprices  of 
the  people.  This  is  sound  American  principle.  It  is  the 
fundamental  principle  of  a  government  of  the  people.  Let 
it  not  be  forgotten  that  one  of  the  chief  fathers  of  this  nation, 
Alexander  Hamilton,  in  persuading  the  ratification  of  the  Con- 
stitution, declared  that — 

"Justice  is  the  end  of  government  It  is  the  end  of  civil  society. 
.  .  .  *  In  a  society,  under  the  forms  of  which  the  stronger  faction  can 
readily  unite  and  oppress  the  weaker,  anarchy  may  as  truly  be  said  to 
reign  as  in  a  state  of  nature,  where  the  weaker  individual  is  not  secured 
against  the  violence  of  the  stronger." — Federalist  LI, 

And  another  of  these,  James  Madison,  nobly  said: — 


7  Declaration  of  Independence,  par.  8. 
17 


260  THE     RIGHTS     OF    THE     PEOPLE. 

"An  elective  despotism  was  not  the  government  we  fought  for; 
but  one  which  should  not  only  be  founded  on  free  principles,  but  in 
which  the  powers  of  government  should  be  so  divided  and  balanced 
among  several  bodies  of  magistracy  as  that  no  one  could  transcend 
their  legal  limits."— Federalist  XL  VIII. 

And  when  the  agents  of  the  people,  appointed  under  the 
forms  of  constitutional  government,  take  the  very  unconstitu- 
tional course  that  brings  about  just  the  anarchy  and  elective 
despotism  here  pointed  out,  then  it  is  the  right  of  the  people, 
by  this  double  tenure,  to  see  to  it  that  such  unconstitutional 
laws  and  proceedings  are  disregarded,  and  the  Constitution 
made  to  prevail.  This  is  further  sustained  by  authority.  Let 
all  read  carefully  the  following  passages,  which  are  equally  ap- 
plicable to  Legislatures  and  State  constitutions  as  to  Congress 
and  the  national  Constitution: — 

"The  supreme  law-making  power  is  the  people,  that  is,  the  qual- 
ified voters,  acting  in  a  prescribed  way.  The  people  iiave  by  their 
supreme  law,  the  Constitution,  given  to  Congress  a  delegated  and 
limited  power  of  legislation.  Every  statute  passed  under  that  power 
conformably  to  the  Constitution,  has  all  the  authority  of  the  Constitu- 
tion behind  it.  Any  statute  passed  which  goes  beyond  that  power  is 
invalid  and  incapable  of  enforcement.  It  is  in  fact  not  a  statute  at 
all,  because  Congress  in  passing  it  was  not  really  a  law-making  body, 
but  a  mere  group  of  private  persons. 

"Says  Chief  Justice  Marshall:  '  The  powers  of  the  Legislature  are 
defined  and  limited;  and  that  those  limits  may  not  be  mistaken  or  for- 
gotten, the  Constitution  is  written.  To  what  purpose  are  powers  lim- 
ited, and  to  what  purpose  is  that  limitation  committed  to  writing,  if 
those  limits  may  at  any  time  be  passed,  by  those  intended  to  be 
restrained  ?  The  Constitution  is  either  a  superior,  paramount  law, 
unchangeable  by  ordinary  means,  or  it  is  on  a  level  with  ordinary 
legislative  acts,  and,  like  any  other  acts,  is  alterable  when  the  Legisla- 
ture shall  please  to  alter  it.  If  the  former  part  of  the  alternative  be 
true,  then  a  legislative  act  contrary  to  the  Constitution  is  not  law.  If 
the  latter  part  be  true,  then  written  constitutions  are  absurd  attempts 
on  the  part  of  the  people  to  limit  a  power  in  its  own  nature  illimit- 
able.'" 

"A  statute  pasesd  by  Congress  beyond  the  scope  of  its  powers  is 


WILL    THE    PEOPLE    ASSERT     THEIR     RIGHTS?  26l 

of  no  more  effect  than  a  by-law  made  ultra  vires  by  an  English  munic- 
ipality." 

"If  the  subordinate  body  attempts  to  transcend  the  power  com- 
mitted to  it,  and  makes  rules  for  other  purposes  or  under  other  condi- 
tions than  those  specified  by  the  superior  authority,  these  rules  are 
not  law,  but  are  null  and  void.  Their  validity  depends  on  their 
being  within  the  scope  of  the  law-making  power  conferred  by  the 
superior  authority,-  and  as  they  have  passed  outside  that  scope  they 
are  invalid.  .  .  .  They  ought  not  to  be  obeyed  or  in  any  way  re- 
garded by  the  citizens,  because  they  are  not  law." 

"  Not  merely  Congress  alone,  but  also  Congress  and  the  President 
conjoined  [and  the  Supreme  Court  also — A.  T.  j.],  are  subject  to  the 
Constitution,  and  cannot  move  a  step  outside  the  circle  which  the 
Constitution  has  drawn  around  them.  If  they  do,  they  transgress  the 
law  and  exceed  their  powers.  Such  acts  as  they  may  do  in  excess  of 
their  powers  are  void,  and  may  be,  indeed  ought  to  be,  treated  as  void 
by  the  meanest  citizen." — Bryce,  American  Commonwealth,  Vol. I,  pp. 
245,  246,  243,  36. 

It  is  impossible  to  demonstrate  more  clearly  or  to  present 
more  forcibly  the  truth  that  the  constitutional  right  of  the 
people  is  absolute,  to  disregard  every  Sunday  law  or  other 
religious  or  ecclesiastical  thing  that  is  made  a  part  of  the  com- 
mon or  any  other  law.  And  by  this  absolute  constitutional 
right  every  person  can,  with  courage,  consistency,  and  right- 
eousness, carry  on  uncompromising  opposition  to  the  religious 
despotism  that  is  fastening  itself  upon  the  country. 

STAND    WITH    ANYBODY    THAT    STANDS    RIGHT. 

There  is  another  ' '  argument ' '  used  f3y  the  movers  for  this 
religious  despotism,  to  combat  which  requires  no  assurance  of 
any  particular  right,  but  which  does  require  more  courage 
than  a  great  many  people  are  willing  to  show.  That  is  the 
'  'argument ' '  of  sneers  and  jeers  and  denunciation — the  ready 
application  of  the  epithets  "infidel,"  "atheist,"  "enemy  of 
Christianity,"  "  enemy  of  the  government,"  "  despiser  of  the 
flag, "  "  traitor, ' '  '  'anarchist, ' '  and,  above  all,  and  to  the  mind 


262  THE     RIGHTS     OF     THE     PEOPLE. 

of  those  who  use  it  worst  of  all,  "Seventh-day  Adventist" 
Every  person  who  would  oppose  the  encroachments  of  this 
religious  despotism,  on  the  only  ground  upon  which  it  can  be 
successfully  opposed,  may  expect  to  have  these  epithets  hurled 
at  him  and  rained  upon  him.  True  and  righteous  though 
this  opposition  be  by  every  possible  count,  yet  this  is  what 
those  certainly  meet  from  the  church-combination,  who  do 
make  this  opposition.  If  anyone  doubts  this,  only  let  him  sin- 
cerely engage  in  it  for  a  little  while. 

Yet  all  that  is  required  to  meet  and  defeat  all  this  '  'argu- 
ment ' '  is  only  the  courage  of  conviction,  the  courage  of  prin- 
ciple. Jefferson,  Madison,  and  those  with  them  who  in  that 
day  engaged  in  this  same  cause,  had  to  meet  it.  When  the 
'  'Act  Establishing  Religious  Freedom ' '  was  published  in 
Italian  and  French,  and  was  distributed  through  Europe,  as 
related  on  page  104,  Jefferson  wrote  home  to  Madison  that  it 
had  thus  "been  the  best  evidence  of  the  falsehood  of  those 
reports  which  stated  us  to  be  in  anarchy.'' '-  —  Works,  Vol.  //, 
pp.  55,  56.  And  the  stigma  that  is  sought  still  to  be  put  upon 
Jefferson's  memory  as  "an  enemy  of  Christianity,"  is,  more 
than  anything  else,  because  of  his  opposition  to  that  religious 
despotism  in  that  day. 

Abraham  Lincoln,  in  his  opposition  to  a  national  despotism 
sustained  by  a  Supreme  Court  decision,  was  also,  as  we  have 
seen  (p.  162),  charged  with  being  among  "  the  enemies  of  the 
Constitution, "  "  the  enemies  of  the  supremacy  of  the  laws, ' ' 
with  aiming  "a  deadly  blow  at  our  whole  republican  form  of 


8  An  illustration,  which  is  only  a  sample  of  this,  appeared  in  the  Christian  States- 
man, the  organ  of  the  "  Protestant  "  combination  in  this  work,  of  January  19,  1895.  In 
trre  "Question  Box  "  there  appeared  a  question  from  some  person  in  Minnesota,  ask- 
ing whether  Protestant  denominations,  in  their  efforts  to  secure  enforcement  of 
religious  observances  by  law,  were  not  making  a  "concession  to  the  Papacy,  an 
acknowledgment  of  the  principles  of  Romanism,"  and  referring  to  Christ's  words, 
"My  kingdom  is  not  of  this  world,"  etc.  The  first  word  in  answer  to  this,  by  the 
editor,  is  this:  "  We  suspect  that  our  correspondent  is  a  Seventh-day  Adventist.  At 
all  events,  he  is  a  sympathizer  with  the  views  of  that  body  on  civil  government." 


WILL    TH£    PEOPLE    ASSERT     THEIR     RIGHTS  ?  263 

government,"  "which,  if  successful,  would  place  all  our  rights 
and  liberties  at  the  mercy  of  passion,  anarchy,  and  violence." 
Of  him  it  was  said,  "  There  is  no  objection  to  him,  except  the 
monstrous  revolutionary  doctrines  with  which  he  is  identified."9 
But,  above  all,  he  was  charged  with  being  an  "Abolitionist." 
This  word  in  that  day,  by  those  who  so  used  it,  was  expressive 
of  the  lowest  point  in  the  scale  which  it  was  possible  to  reach. 
It  was  very  difficult,  indeed  almost  impossible,  for  such  persons 
to  obtain  a  hearing  on  any  public  platform.  Senator  Douglas 
once  referred  to  them  in  a  way  that  shows  the  popular  estimate 
of  them,  by  speaking  of  Lincoln' s  ' '  following  the  example  and 
lead  of  all  the  little  Abolition  orators  who  go  around  and  lecture 
in  the  basements  of  schools  and  churches." — First  Speech  in 
Ottawa  Debate,  Id. ,  p.  173. 

And  these  ready  charges,  especially  the  reproach  of  "Abo- 
litionist," did  in  many  cases  accomplish  the  purpose  for  which 
they  were  used  in  that  day — they  did  smother  the  opposition 
of  men  who  in  their  consciences  knew  that  that  despotism 
ought  to  be  opposed,  precisely  as  the  like  epithets — and  espe- 
cially that  of  ' '  Seventh-day  Adventist  ' '  — smother  the  oppo- 
sition of  many  people  who  to-day  in  their  consciences  know 
that  this  despotism  should  be  openly  opposed.  Abraham  Lin- 
coln's advice  to  all  such  persons  in  that  day  is  equally  appli- 
cable to-day  and  for  all  time.  Here  it  is: — 

"Some  men,  mostly  Whigs,  who  condemn  the  repeal  of  the  Mis- 
souri Compromise,  nevertheless  hesitate  to  go  for  its  restoration  lest 
they  be  thrown  in  company  with  the  Abolitionist.  Will  they  allow 
me,  as  an  old  Whig,  to  tell  them,  good-humoredly,  that  I  think 
this  is  very  silly?  STAND  WITH  ANYBODY  THAT  STANDS 
RIGHT.  Stand  with  him  while  he  is  right,  and  part  with  him  when 
he  goes  wrong;  ...  To  desert  such  ground  because  of  any  com- 
pany is  to  be  less  than  a  Whig,  less  than  a  man,  less  than  an  Amer- 
ican."— Peoria  Speech,  October  16,  1854,  Id.,  pp.  28,  29. 


9 Senator  Douglas's  speech  at  Springfield,   111.,  July  17,  1858,  "Political  Speeches 
and  Debates,"  p.  142. 


264  THE     RIGHTS     OF     THE    PEOPLE. 

So  it  may  be  fittingly  said  to-day,  and  on  this  mighty  ques- 
tion. 

There  is  no  doubt  that  the  Seventh-day  Adventists  do 
stand  in  uncompromising  opposition  to  this  approaching  reli- 
gious despotism,  in  every  phase  of  it.  They  oppose  it  upon 
the  principles  set  down  in  this  book — upon  the  Jeffersonian, 
Madisonian,  Washingtonian,  and  Lincolnian  principles;  upon 
genuine  American,  Protestant,  and  Christian  principles.  And 
in  so  doing  they  are  absolutely  in  the  right.  And  if  it  be  true, 
as  no  doubt  it  is,  that  they  have  upon  these  principles  made 
their  opposition  so  effective  as  to  deserve  to  be  singled  out  by 
the  miners  and  sappers  and  buglers  of  this  religious  despotism 
as  the  chiefest  of  all  their  opponents,  then  the  more  honor  to 
them  for  it — they  are  absolutely  in  the  right.  And  it  is  true 
here,  too,  that  many  men  who  condemn  this  encroachment  of 
the  religious  power  upon  the  civil,  nevertheless  hesitate  openly 
to  oppose  it  lest  they  be  thrown  in  company  with  the  Seventh- 
day  Adventists.  But  let  it  be  now  also  said  to  all :  "  Stand 
with  anybody  that  stands  right.  Stand  with  him  while  he  is 
right,  and  part  with  him  when  he  goes  wrong." 

So  to  stand  to-day  upon  this  great  issue  is  to  defend  the 
natural  rights  of  mankind.  It  is  to  conserve  the  constitutional 
rights  of  the  American  people.  It  is  to  maintain  pure  Prot- 
estantism. It  is  to  manifest  true  Christianity  in  the  world. 
To  desert  such  ground  because  of  any  company  is  to  desert 
the  company  and  abandon  the  principles  of  Lincoln,  Wash- 
ington, Madison,  Jefferson,  Martin  Luther,  and  the  Lord  Jesus 
Christ.  To  desert  such  ground  because  of  any  company  is  to 
be  less  than  a  man,  less  than  an  American,  less  than  a  Prot- 
estant, less  than  a  Christian. 


CHAPTER  XII. 


RELIGIOUS    RIGHT   IN   THE   STATES. 

IT  has  been  shown  in  chapter  5  how  that,  upon  the  victory 
of  religious  right  in  Virginia  in  1787,  and  the  nationalizing  of 
those  principles  by  the  example  and  provisions  of  the  national 
Constitution  made  in  1787-1789,  "In  every  other  American 
State  oppressive  statutes  concerning  religion  fell  into  disuse." 
And  that  the  statute  of  Virginia  then  established  had  since 
been  incorporated — always  in  its  principles  and  often  in  its 
very  words — in  every  State  constitution  in  the  Union  from 
that  day  to  this. 

This  was  not  accomplished  in  a  day,  however,  in  the  oth- 
ers of  the  original  thirteen  States.  As  also  formerly  stated,  all 
the  other  States  except  Rhode  Island  had  established  religion 
in  some  form.  This  was  so  when  the  national  Constitution 
was  adopted.  And  being  so,  each  State  retaining  control  of 
its  own  peculiar  institutions,  the  national  Constitution  was  not 
made  to  prohibit  State  recognitions  of  religion,  but  only  that 
"Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof."  It  was 
hoped  indeed  that  the  moral  effect  of  the  example  of  the 
national  Constitution  would  lead  to  the  extinction  of  the  thing 
in  all  the  States.  But  the  difficulties  attending  the  creation  of 
a  national  power  at  all,  were  so  great  that  it  was  essential  to 
attend  to  this  one  paramount  object,  and  not  try  to  accomplish 
too  much  at  once  and  directly,  lest  nothing  at  all  be  done. 
Abraham  Lincoln's  statement  of  the  case  as  to  slavery — the 
civil  despotism — is  so  precisely  the  statement  of  the  case  as  to 

(265) 


266  THE     RIGHTS     OF    THE     PEOPLED 

established  religion — religious  despotism — that   it   could  not 
be  better  denned;  therefore  we  quote: — 

"When  our  government  was  established  we  had  the  institution  of 
slavery  among  us.  We  were  in  a  certain  sense  compelled  to  tolerate 
its  existence.  It  was  a  sort  of  necessity.  We  had  gone  through  our 
struggle  and  secured  our  own  independence.  The  framers  of  the 
Constitution  found  the  institution  of  slavery  amongst  their  other  insti- 
tutions at  the  time.  They  found  that  by  an  effort  to  eradicate  it  they 
might  lose  much  of  what  they  had  already  gained.  They  were  obliged 
to  bow  to  the  necessity.  .  .  .  They  did  what  they  could,  and 
yielded  to  necessity  for  the  rest." — Springfield,  III.,  Speech,  July  17 
1858,  Political  Speeches  and  Debates,  p.  160. 

Read  "established  religions"  in  place  of  "slavery"  in  this 
passage,  and  the  case  is  perfectly  stated  as  to  that  question 
also. 

Thus  the  institution  of  slavery  continued  until,  by  a  Su- 
preme Court  decision  perverting  the  Constitution,  an  attempt 
was  made  to  nationalize  it,  when  it  was  abolished  even  in  the 
States  by  the  thirteenth  amendment  to  the  national  Constitu- 
tion, which  runs  thus: — 

ARTICLE     XIII. 

"SECTION  i.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction." 

In  order  that  this  amendment  might  be  effective  in  all  its 
scope,  it  was  essential  that  the  basis  of  citizenship  should  be 
changed. 

"If  we  were  now  to  have  a  broader  nationality  as  the  result  of  our 
civil  struggle,  it  was  apparent  to  the  mass  of  men,  as  well  as  to  the 
publicist  and  statesman,  that  citizenship  should  be  placed  on  unques- 
tionable ground,  on  ground  so  plain  that  the  humblest  man  who  should 
inherit  its  protection  would  comprehend  the  extent  and  significance 
of  his  title." — Blaine,  Twenty  Years  of  Congress,  Vol.  II,  p.  311. 

Accordingly,  the  fourteenth  amendment  to  the  Constitution 
was  adopted,  the  first  section  of  which  reads  as  follows : — 


UNIVERSr 

CF 


RELIGIOUS    RIGHT    IN    THE    STATES.  267 


ARTICLE    XIV. 

"All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States,  and  of  the 
State  in  which  they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws." 

Before  this  amendment  was  adopted  there  was,  primarily, 
no  such  thing  as  citizenship  of  the  United  States.  Citizenship 
of  the  United  States  came,  except  to  aliens,  only  as  a  conse- 
quence  of  citizenship  of  a  State.  The  reason  of  this  peculiar 
fact  was  that  the  thirteen  States  were  all  here  as  sovereign  inde- 
pendencies before  the  United  States  Government  was  formed; 
and  the  people,  being  citizens  of  these  States  to  begin  with, 
when  these  very  persons  formed  the  national  government  they 
became,  by  that  very  process,  citizens  of  the  United  States. 
And  as  there  was  no  provision  in  the  Constitution  touching 
the  subject  with  respect  to  any  but  aliens,  the  situation  still 
remained  the  same — citizens  of  a  State  first,  and,  as  a  conse- 
quence of  that,  citizens  of  the  United  States.  As  stated  by 
an  authority  in  the  time  when  the  matter  stood  thus,  it  is  as 
follows: — 

"Citizenship,  as  we  understand  it,  may  be  acquired  in  either  ot 
two  ways, — by  birth  or  by  adoption,  called,  when  applied  to  aliens, 
naturalization.  After  the  Declaration  of  Independence,  and  before 
the  adoption  of  the  Constitution  of  the  United  States,  the  power  of 
conferring  citizenship  by  naturalization  or  otherwise,  like  all  other 
sovereign  powers,  was  in  the  several  States.  And  as  the  power 
vested  in  Congress  by  that  instrument  applies  to  aliens  only,  and  as 
all  powers  not  delegated  to  Congress  by  the  Constitution,  nor  prohib- 
ited to  the  States,  ere  expressly  reserved  to  the  States  respectively  or 
to  the  people,  the  power  of  conferring  citizenship  on  all  persons  not 
aliens,  necessarily  remains  in  the  several  States  both  as  to  persons 
born  on  their  soil,  and  as  to  those  born  in  other  parts  of  the  Union; 
and  any  person  upon  whom  such  rights  are  conferred  becomes  a  citi- 


268  THE     RIGHTS     OF    THE     PEOPLE. 

zen  of  the  State  conferring  them.  And  every  citizen  of  a  State  is, 
ipso  facto,  a  citizen  of  the  United  States. " — Law  Reporter,  June,  1857, 
p.  14. 

As  more  fully  stated  by  authority  since  it  was  changed,  it  is 
as  follows: — 

"  Before  the  adoption  of  this  amendment,  citizenship  of  the  United 
States  was  inferred  from  citizenship  of  some  one  of  the  States,  for 
there  was  nothing  in  the  Constitution  defining  or  even  implying 
national  citizenship  as  distinct  from  its  origination  in,  or  derivation 
from,  a  State.  It  was  declared  in  Article  IV,  section  2,  of  the  Fed- 
eral Constitution,  that  citizens  of  each  State  shall  be  entitled  to  all 
the  privileges  and  immunities  of  citizens  of  the  several  States ;  but 
nothing  was  better  known  than  that  this  provision  was  a  dead  letter 
from  its  very  origin.  A  colored  man  who  was  a  citizen  of  a  northern 
State  was  certain  to  be  placed  under  the  surveillance  of  the  police  if 
he  ventured  south  of  the  Potomac  or  the  Ohio,  destined  probably  to 
be  sold  into  slavery  under  State  law,  or  permitted  as  a  special  favor 
to  return  at  once  to  his  home.  A  foreign-born  citizen,  with  his  certif- 
icate of  naturalization  in  his  possession,  had,  prior  to  the  war,  no 
guarantee  or  protection  against  any  form  of  discrimination,  or  indig- 
nity, or  even  persecution,  to  which  State  law  might  subject  him,  as 
has  been  painfully  demonstrated  at  least  twice*in  our  history." 

At  that  time  any  State  could  have  as  thorough-going  an 
establishment  of  religion  as  might  be  chosen,  and  persecute 
without  limit,  and  yet  there  was  no  refuge  under  the  national 
Constitution,  because  that  document  only  said  that  "Congress 
shall  make  no  law  respecting  an  establishment  of  religion  or 
prohibiting  the  free  exercise  thereof."  The  Constitution  did 
not  say  that  no  State  should  do  it ;  and  as  the  powers  not  del- 
egated to  the  United  States,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  or  to  the  people,  it  followed  that 
each  State  might  do  all  this  without  restraint,  at  its  own  will. 
The  fourteenth  amendment  overturned  this.  Further  we 
quote: — 

"  But  this  rank  injustice  and  this  hurtful  inequality  were  removed 
by  the  fourteenth  amendment.  Its  opening  section  settled  all  con- 
flicts and  contradictions  on  this  question  by  a  comprehensive  decla- 


RELIGIOUS    RIGHT    IN   THE   STATES.  269 

ration  which  defined  national  citizenship,  and  gave  to  \\.  precedence  of 
the  citizenship  of  a  State.  'All  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof  are  citizens  of 
the  United  States,  and  of  the  States  wherein  they  reside.'  These 
pregnant  words  distinctly  reversed  the  origin  and  character  of  Amer- 
ican citizenship.  Instead  of  a  man  being  a  citizen  of  the  United 
States  because  he  was  a  citizen  of  one  of  the  States,  he  was  now 
made  a  citizen  of  any  State  in  which  he  might  choose  to  reside 
because  he  was  antecedently  a  citizen  of  the  United  States."—  Blaine, 
Tiventy  Years,  Vol.  //,  pp.  312,  j/j. 

Every  such  person,  then,  being  by  the  supreme  law  a  cit- 
izen of  the  United  States  first  of  all,  and  this  citizenship  hold- 
ing- precedence  of  every  other,  it  follows  that  all  privileges, 
immunities,  and  rights  secured  to  him  by  the  national  Con-' 
stitution  are  likewise  his  first  of  all  and  take  precedence  of  all 
others.  This  is  as  certainly  true  as  it  would  be  if  there  were 
no  other  citizenship  known  to  the  Constitution. 

Now  absolute  freedom  from  any  sort  of  an  establishment 
of  religion  is  an  immunity,  and  exemption  from  every  kind  of 
law  prohibiting  the  free  exercise  of  religion  is  the  privilege  of 
every  citizen  of  the  United  States;  for  it  is  written,  "Con- 
gress shall  make  no  law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  thereof."  If  there 
were  no  other  citizenship  known  to  the  Constitution  than  cit- 
izenship of  the  United  States,  the  only  law-making  power 
that  could  possibly  affect  the  citizen  would  be  Congress. 
The  only  government  that  could  have  anything  to  do  with  the 
jitizen  would  be  the  United  States  Government,  and  Congress 
is  forbidden  to  make  any  law  respecting  religion  or  that  would 
interfere  with  the  free  exercise  of  religion.  Therefore,  abso- 
lute freedom  from  any  such  thing  is  a  privilege  and  immunity 
of  every  citizen  of  the  United  States,  by  the  Constitution. 

And  now  the  second  sentence  of  section  i  of  this  four- 
teenth amendment  declares  that  "no  State  shall  make  or 
enforce  any  law  abridging  the  privileges  or  immunities  of  citi- 
zens of  the  United  States."  That  is  to  say,  that  no  State 


276  THE    RIGHTS    OF    THE    PEOPLE. 

shall  make  any  law,  or  enforce  any  law  already  made,  which 
abridges,  which  restricts,  which  lessens,  the  privilege  or  immu- 
nity of  any  citizen  of  the  United  States  to  be  absolutely  free  in 
things  religious.  It  practically  declares  that  "no  State  shall 
make  any  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof." 

'  'Whatever  one  may  claim  as  of  right  under  the  Constitution  and 
laws  of  the  United  States  by  virtue  of  his  citizenship,  is  a  privilege  of 
a  citizen  of  the  United  States.  Whatever  the  Constitution  and  laws 
of  the  United  States  entitle  him  to  exemption  from,  he  may  claim  an 
exemption  in  respect  to.  And  such  a  right  or  privilege  is  abridged 
whenever  the  State  law  interferes  with  any  legitimate  operation  of 
federal  authority  which  concerns  his  interest,  whether  it  be  an  author- 
ity actively  exerted,  or  resting  only  in  the  express  or  implied  com- 
mand or  assurance  of  the  Federal  Constitution  or  law." — Cooley, 
Principles,  p.  247;  Quoted  by  Bryce,  American  Commonwealth,  chap- 
ter 36,  par.  22,  note. 

Accordingly,  this  provision  of  the  fourteenth  amendment 
annihilates  the  force  of  every  Sunday  law,  or  other  religious 
law,  or  law  abridging  the  free  exercise  of  religion,  in  every 
State  in  the  Union.  This  is  as  plain  a  consequence  as  ever 
came  or  could  corne  from  any  provision  of  law.  It  prohibits 
the  persecution  of  any  Seventh-day  Adventist,  Seventh-day 
Baptist,  Jew,  Protestant,  Catholic,  or  anybody  else,  by  any 
State  law  which  interferes  with  the  free  exercise  of  his  religion. 
This  is  the  effect  of  the  provision  as  it  is  in  its  plain  reading. 
This  is  certain.  And  it  is  no  less  certain  that  the  intent  of 
those  who  made  it  was  that  this  should  be  its  effect.  James 
G.  Elaine  was  one  of  the  leading  spirits  in  the  framing  of  this 
amendment,  and,  after  remarking  of  the  first  provision  of  this 
section,  that  it  "establishes  American  citizenship  upon  a 
permanent  foundation,  gives  to  the  humblest  man  in  the 
republic  ample  protection  against  any  abridgment  of  his 
privileges  and  immunities  by  State  law,"  and  that  "the  first 
section  of  the  constitutional  amendment,  which  includes  these 
invaluable  provisions,  is  in  fact  a  new  charter  of  liberty  to  the 


272  THE   RIGHTS    OF   THE   PEOPLE. 

citizens  of  the  United  States"  with  the  matter  before  quoted, 
he  continues: — 

"  The  consequences  that  flowed  from  this  radical  change  in  the 
basis  of  citizenship  were  numerous  and  weighty.  Nor  were  these 
consequences  left  subject  to  construction  or  speculation.  They  were 
incorporated  in  the  same  section  of  the  amendment.  The  abuses 
which  were  formerly  heaped  on  the  citizens  of  one  State  by  the  legis- 
lative and  judicial  authority  of  another  State  were  rendered  thence- 
forth impossible.  The  language  of  the  fourteenth  amendment  is 
authoritative  and  mandatory:  'No  State  shall  make  or  enforce  any  law 
abridging  the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  prop- 
erty without  dice  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

"  Under  the  force  of  these  weighty  inhibitions,  the  citizen  of  foreign 
birth  cannot  be  persecuted  by  discriminating  statutes,  nor  can  the 
citizen  of  dark  complexion  be  deprived  of  a  single  privilege  or  immu- 
nity which  belongs  to  the  white  man.  Nor  can  the  Catholic,  or  the 
Protestant,  or  the  Jew,  be  placed  under  ban  or  subjected  to  any  depri- 
vation of  personal  or  religious  right. 

"The  provision  is  comprehensive  and  absolute,  and  sweeps  away 
at  once  every  form  of  oppression  and  every  denial  of  justice.  It 
abolishes  caste  and  enlarges  the  scope  of  human  freedom.  It  in- 
creases the  power  of  the  republic  to  do  equal  and  exact  justice  to  all 
its  citizens,  and  curtails  the  p'ower  of  the  States  to  shelter  the  wrong- 
doer, or  to  authorize  crime  by  a  statute.  To  Congress  is  committed 
the  authority  to  enforce  every  provision  of  the  fourteenth  amendment, 
and  the  humblest  man  who  is  denied  the  equal  protection  of  the  laws 
of  the  State  can  have  his  wrongs  redressed  before  the  supreme  judi- 
ciary of  the  nation." — Twenty  Years  of  Congress,  Vol.  II,  pp.  313, 314. 

Such  is  the  statement,  the  pledge,  and  the  security,  of 
religious  right  in  the  States,  according  to  the  "weighty," 
"authoritative,  and  mandatory"  provisions  of  the  national 
Constitution. 

It  is  true  that  each  State  constitution  contains  strong  guar- 
anties of  the  perfect  freedom  of  religious  right,  yet  the 
Legislatures  have  ignored  them,  and  the  State  Supreme 
Courts  have  interpreted  them  away.  It  is  true  that  the  national 


RELIGIOUS    RIGHT    IN    THE    STATES.  273 

Constitution  guarantees  exemption  from  interference  on  the 
part  of  the  government  or  any  State,  with  the  religious  right 
of  citizens  of  the  United  States;  yet  the  supreme  judiciary  of 
the  nation  has  interpreted  into  that  Constitution  "the  estab- 
lishment of  the  Christian  religion"  as  the  '  'meaning"  thereof; 
Congress  in  its  Sunday  legislation  has  put  in  the  national  law 
the  very  religious  idea  that  has  been  set  up  by  the  States;  and 
the  executive  has  approved  it.  Thus,  so  far,  the  national 
power,  instead  of  maintaining  the  high  dignity  which  the  peo- 
ple had  given  it  forever  to  protect  the  privileges  and  immun- 
ities of  citizenship  of  the  United  States  from  invasion  by  the 
States,  has  abandoned  its  high  station,  and  has  gone  down  and 
actually  joined  the  States  in  the  invasion.  Nevertheless, 

THE   RIGHT   OF  THE   PEOPLE  STILL  ABIDES. 

The  Constitution  as  the  people  have  made  it,  is  still  the 
voice  and  will  of  the  people.  It  still  guarantees  privilege,  im- 
munity, and  freedom,  to  citizens  of  the  United  States :  only  as  the 
agencies  appointed  by  the  people  to  maintain  these  guaranties 
have  failed  to  do  it,  the  responsibility  and  the  right  now 
devolve  upon  the  people  themselves  to  see  that  it  is  done. 

Slavery  and  established  religions — twin  despotisms — existed 
in  the  States  at  the  time  of  the  making  of  the  nation.  The 
makers  of  the  nation,  finding  it  impossible  to  do  away  with 
them  without  risking  the  loss  of  all,  yielded  to  the  necessity 
and  left  them  standing  as  State  institutions  only.  When  by 
the  Dred  Scott  decision  and  congressional  legislation  the 
attempt  was  made  to  nationalize  one  of  these  despotisms,  the 
people  arose  in  their  majesty  and  reversed  that  decision  and 
destroyed  that  despotism,  and  with  it  all  other,  even  in  the 
States.  Now,  however,  the  other  despotism  has  reared  its 
hateful  head,  and,  by  means  of  the  "Christian  nation"  Supreme 
Court  decision,  and  congressional  legislation,  this  is  sought  to 
be  nationalized.  Will  the  people,  yea,  will  not  the  people,  rise 
once  more  in  their  majesty  and  reverse  this  decision  and  set 


274  THE     BIGHTS     OF    THE     PEOPLE. 

the  national  power  back  again  at  the  height  and  dignity  where 
they  placed  it  when  they  destroyed  the  other  despotism? 

This  is  the  duty,  this  is  the  task,  this  is  the  right  of  the 
people  of  the  United  States.  True,  now  as  before,  the  wealth, 
the  popularity,  and  the  power  of  the  country — the  power  of 
State  and  Church,  and  of  Church  and  State  united — are  all 
against  us.  But  God  and  the  right  are  for  us.  And  with  the 
immortal  Lincoln  we  must  say: — 

11  ]Ve  have  to  fight  this  battle  upon  principle,  and  upon  principle 
alone.  .  .  .  So  I  hope  those  with  whom  I  am  surrounded  have 
principle  enough  to  nerve  themselves  for  the  task,  and  leave  nothing 
undone  that  can  be  fairly  done  to  bring  about  the  right  result." — 
Springfield,  III. ,  July  //,  1858,  Political  Speeches  and  Debates,  p.  145. 

Let  us  never  rest  until  there  is  created  such  a  public  senti- 
ment that  every  court  will  be  ashamed  to  use  the  term 
"Christian  nation."  For  "public  sentiment  is  everything. 
With  public  sentiment,  nothing  can  fail;  without  it,  nothing 
can  succeed.  Consequently,  he  who  moulds  public  sentiment, 
goes  deeper  than  he  who  enacts  statutes  or  pronounces  de- 
cisions. He  makes  statutes  and  decisions  possible  or  impos- 
sible to  be  executed." — Id^p.  191. 

True,  in  the  effort  to  create  this  public  sentiment,  we  shall 
be  unpopular;  we  shall  be  scoffed  at;  we  shall  be  reviled;  but 
in  this  we  are  right — absolutely  and  eternally  right.  Then  let 
no  one  '  'be  slandered  from  his  duty  by  false  accusations,  nor 
frightened  from  it  by  menaces  of  dungeons.  Let  us  have 
faith  that  right  makes  might;  and  in  that  faith  let  us  to  the 
end  dare  to  do  our  duty  as  we  understand  it." — Id.,  p.  S27- 

Many  times  the  people  may  refuse  to  listen,  as  at  first,  even 
in  his  own  home  town,  they  did  to  Abraham  Lincoln  against 
slavery.  Once  in  1855,  in  Springfield,  Illinois,  Lincoln  was 
advertised  to  speak  on  the  "Slavery  Question."  Mr.  Hern- 
don,  his  law  partner,  spread  great  posters  through  the  town, 
employed  a  band  to  march  the  streets,  and  had  the  bells  rung 
to  have  the  people  come.  Not  a  soul  came  to  hear — but 


RELIGIOUS    RIGHT    IN    THE   STATES.  275 

Herndon  himself  and  the  janitor  of  the  building.     Yet  Lincoln 
made  the  following  speech: — 

"GENTLEMEN:  This  meeting  is  larger  than  I  knew  it  would  be,  as 
I  knew  that  Herndon  and  myself  would  come,  but  I  did  not  know  that 
anyone  else  would  be  here,  and  yet  another  has  come — you,  John 
Paine  [the  janitor]. 

"These  are  bad  times,  and  seem  out  of  joint.  All  seems  dead, 
dead,  DEAD;  but  the  age  is  NOT  yet  dead.  It  liveth  as  sure  as  our 
Maker  liveth.  Under  all  this  seeming  want  of  life  and  motion,  the 
world  does' move,  nevertheless.  Be  hopeful.  And  now  let  us  adjourn 
and  appeal  to  the  people." 

So  it  is  now  said  to  every  reader  of  this  book:  Let  us  appeal 
to  the  people.  Yea,  though  they  will  not  listen,  still  let  us 
appeal  to  the  people.  It  is  the  only  right  course.  The  peo- 
ple must  do  the  work.  Will  the  people  awake,  and  arise, 
and  assert,  and  maintain, 

THE  RIGHTS  OF  THE  PEOPLE? 


APPENDIX  A. 


THE  DECLARATION  OF  INDEPENDENCE. 

WHEN,  in  the  course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected  them 
with  another,  and  to  assume,  among  the  powers  of  the  earth,  the 
separate  and  equal  station  to  which  the  laws  of  nature  and  of  nature's 
God  entitle  them,  a  decent  respect  to  the  opinions  of  mankind  requires 
that  they  should  declare  the  causes  which  impel  them  to  the  sepa- 
ration. 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created 
equal;  that  they  are  endowed  by  their  Creator  with  certain  unalien- 
able  rights;  that  among  these  are  life,  liberty,  and  the  pursuit  of  hap- 
piness. That  to  secure  these  rights,  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent  of  the  governed; 
that  whenever  any  form  of  government  becomes  destructive  of  these 
ends,  it  is  the  right  of  the  people  to  alter  or  to  abolish  it,  and  to  insti- 
tute a  new  government,  laying  its  foundation  on  such  principles,  and 
organizing  its  powers  in  such  form,  as  to  them  shall  seem  most  likely 
to  effect  their  safety  and  happiness.  Prudence,  indeed,  will  dictate 
that  governments  long  established  should  not  be  changed  for  light 
and  transient  causes;  and  accordingly,  all  experience  hath  shown  that 
mankind  are  more  disposed  to  suffer,  while  evils  are  sufferable,  than 
to  right  themselves  by  abolishing  the  forms  to  which  they  are  accus- 
tomed. But  when  a  long  train  of  abuses  and  usurpations,  pursuing 
invariably  the  same  object,  evinces  a  design  to  reduce  them  under 
absolute  despotism,  it  is  their  right,  it  is  their  duty,  to  throw  off  such 
government,  and  to  provide  new  guards  for  their  future  security. 
Such  has  been  the  patient  sufferance  of  these  Colonies,  and  such  is 
now  the  necessity  which  constrains  them  to  alter  their  former  systems 
of  government.  The  history  of  the  present  king  of  Great  Britain  is 

(277) 


278  THE    DECLARATION    OF    INDEPENDENCE. 

a  history  of  repeated  injuries  and  usurpations,  all  having,  in  direct 
object,  the  establishment  of  an  absolute  tyranny  over  these  States. 
To  prove  this,  let  facts  be  submitted  to  a  candid  world :- 

He  has  refused  his  assent  to  laws  the  most  wholesome  and  neces- 
sary for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his  assent 
should  be  obtained;  and,  when  so  suspended,  he  has  utterly  neglected 
to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of  large 
districts  of  people,  unless  those  people  would  relinquish  the  right  of 
representation  in  the  Legislature;  a  right  inestimable  to  them,  and 
formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  uncom- 
fortable, and  distant  from  the  depository  of  their  public  records,  for 
the  sole  purpose  of  fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  representative  houses  repeatedly  for  opposing, 
with  manly  firmness,  his  invasions  on  the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to  cause 
others  to  be  elected;  whereby  the  legislative  powers,  incapable  of 
annihilation,  have  returned  to  the  people  at  large  for  their  exercise, 
the  State  remaining,  in  the  meantime,  exposed  to  all  the  danger  of 
invasion  from  without  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States,  for 
that  purpose  obstructing  the  laws  for  the  naturalization  of  foreigners, 
refusing  to  pass  others  to  encourage  their  migration  hither,  and  rais- 
ing the  conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  refusing  his 
assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone  for  the  tenure  of 
their  offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither  swarms 
of  officers  to  harass  our  people  and  eat  out  their  substance 

He  has  kept  among  us,  in  times  of  peace,  standing  armies,  without 
the  consent  of  our  Legislature. 

He  has  affected  to  render  the  military  independent  of,  and  superior 
to,  the  civil  power.  — -~ 

He  has  combined,  with  others,  to  subject  us  to  a  jurisdiction  for- 
eign to  our  Constitution,  and  unacknowledged  by  our  laws,  giving 
his  assent  to  their  acts  of  pretended  legislation: 


THE    DECLARATION    OF    INDEPENDENCE.  279 

For  quartering  large  bodies  of  armed  troops  among  us; 

For  protecting  them,  by  a  mock  trial,  from  punishment  for  any 
murders  which  they  should  commit  on  the  inhabitants  of  these  States; 

For  cutting  off  our  trade  with  all  parts  of  the  world; 

For  imposing  taxes  on  us  without  our  consent; 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury; 

For  transporting  us  beyond  seas  to  be  tried  for  pretended  offenses; 

For  abolishing  the  free  system  of  English  laws  in  a  neighboring 
province,  establishing  therein  an  arbitrary  government,  and  enlarging 
its  boundaries,  so  as  to  render  it  at  once  an  example  and  fit  instru- 
ment for  introducing  the  same  absolute  rule  into  these  Colonies; 

For  taking  away  our  charters,  abolishing  our  most  valuable  laws, 
and  altering,  fundamentally,  the  powers  of  our  government; 

For  suspending  our  own  Legislatures,  and  declaring  themselves 
invested  with  power  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us  out  of  his 
protection,  and  waging  war  against  us. 

H%  has  plundered  our  seas,  ravaged  our  coasts,  burnt  our  towns, 
and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign  merce- 
naries to  complete  the  works  of  death,  desolation,  and  tyranny  already 
begun,  with  circumstances  of  cruelty  and  perfidy  scarcely  paralleled 
in  the  most  barbarous  ages,  and  totally  unworthy  the  head  of  a  civ- 
ilized nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on  the  high 
seas,  to  bear  arms  against  their  country,  to  become  the  executioners 
of  their  friends  and  brethren,  or  to  fall  themselves  by  their  hands. 

He  has  excited  domestic  insurrections  among  us,  and  has  endeav- 
ored to  bring  on  the  inhabitants  of  our  frontiers  the  merciless  Indian 
savages,  whose  known  rule  of  warfare  is  an  undistinguished  destruc- 
tion of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions  we  have  petitioned  for  redress 
in  the  most  humble  terms.  Our  repeated  petitions  have  been  answered 
only  by  repeated  injury.  A  prince  whose  character  is  thus  marked 
by  every  act  which  may  define  a  tyrant  is  unfit  to  be  the  ruler  of  a  free 
people. 

Nor  have  we  been  wanting  in  attention  to  our  British  brethren. 
We  have  warned  them,  from  time  to  time,  of  attempts  made  by  their 
Legislature  to  extend  an  unwarrantable  jurisdiction  over  us.  We 
have  reminded  them  of  the  circumstances  of  our  emigration  and  set- 


280  THE    DECLARATION   OF   INDEPENDENCE. 

tlement  here.  We  have  appealed  to  their  native  justice  and  magna- 
nimity, and  we  have  conjured  them,  by  the  ties  of  our  common  kin- 
dred, to  disavow  these  usurpations,  which  would  inevitably  interrupt 
our  connections  and  correspondence.  They,  too,  have  been  deaf  to 
the  voice  of  justice  and  consanguinity.  We  must,  therefore,  acquiesce 
in  the  necessity  which  denounces  our  separation,  and  hold  them,  as 
we  hold  the  rest  of  mankind,  enemies  in  war,  in  peace  friends. 

We,  therefore,  the  representatives  of  the  United  States  of  America, 
in  General  Congress  assembled,  appealing  to  the  Supreme  Judge  of 
the  world  for  the  rectitude  of  our  intentions,  do,  in  the  name  and  by 
the  authority  of  the  good  people  of  these  Colonies,  solemnly  publish 
and  declare,  That  these  United  Colonies  are,  and,  of  right,  ought  to 
be,  free  and  independent  States;  that  they  are  absolved  from  all 
allegiance  to  the  British  crown,  and  that  all  political  connection 
between  them  and  the  State  of  Great  Britain  is,  and  ought  to  be, 
totally  dissolved;  and  that,  as  free  and  independent  States,  they  have 
full  power  to  levy  war,  conclude  peace,  contract  alliances,  establish 
commerce,  and  to  do  all  other  acts  and  things  which  indepetMent 
States  may  of  right  do.  And,  for  the  support  of  this  Declaration,  with 
a  firm  reliance  on  the  protection  of  Divine  Providence,  we  mutually 
pledge  to  each  other  our  lives,  our  fortunes,  and  our  sacred  honor/ 

Massachusetts  Bay.  FRANCIS  LEWIS, 

JOHN  HANCOCK,  LEWIS  MORRIS. 
SAMUEL  ADAMS,  New  Jersey. 

JOHN  ADAMS,  RICHARD  STOCKTON, 

ROBERT  TREAT  PAINE,  JOHN  WITHERSPOON, 

ELBRIDGE  GERRY.  FRANCIS  HOPKINSON, 

JOHN  HART, 
New  Hampshire.  \  ^ 

ABRAHAM  CLARK. 

JOSIAH  BARTLETT,  Pennsylvania. 

WILLIAM  WHIPPLE,  ROBERT  MORRIS, 

MATTHEW  THORNTON.  BENJAMIN  RUSH, 

Rhode  Island.  BENJAMIN  FRANKLIN, 

STEPHEN  HOPKINS,  JOHN  MORTON» 

WILLIAM  ELLERY.  GEORGE  CLYMER, 

JAMES  SMITH, 

New  York.  GEORGE  TAYLOR, 

WILLIAM  FLOYD,  JAMES  WILSON, 

PHILIP  LIVINGSTON,  GEORGE  Ross. 


THE    DECLARATION    OF    INDEPENDENCE.  28 1 

Connecticut.  THOMAS  JEFFERSON, 

ROGER  SHERMAN,  BENJAMIN  HARRISON, 

SAMUEL  HUNTINGTON,  THOMAS  NELSON,  JR., 

WILLIAM  WILLIAMS,  FRANCIS  LIGHTFOOT  LEE, 

OLIVER  WOLCOTT.  CARTER  BRAXTON. 

Delaware.  North  Carolina. 

CESAR  RODNEY,  WILLIAM  HOOPER, 

GEORGE  READ,  JOSEPH  HEWES> 

THOMAS  MCKEAN.  JOHN  PENN' 

South  Carolina. 
Maryland. 

EDWARD  RUTLEDGE, 

SAMUEL  CHASE,  THOMAS  HEYWARD,  JR., 

WILLIAM  PACA,  THOMAS  LYNCH,  JR., 

THOMAS  STONE,  A          R  MlDDLETON. 

CHARLES  CARROLL,  of  Carrollton. 

Georgia. 

Virginia.  BUTTON  GWINNETT, 

GEORGE  WYTHE,  LYMAN  HALL, 

RICHARD  HENRY  LEE,  GEORGE  WALTON. 


APPENDIX  B. 


THE  CONSTITUTION  OF  THE  UNITED  STATES. 

WE,  the  people  of  the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic  tranquillity,  provide  for 
the  common  defense,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE  I. 

SECTION  i.  All  legislative  powers  herein  granted  shall  be  vested  in 
a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives. 

SEC.  2.  The  House  of  Representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year  by  the  people  of  the  several  States, 
and  the  electors  in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  State  Legislature. 

No  person  shall  be  a  representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  State  in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to 
their  respective  numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound  to  service  for  a 
term,  of  years,  and  excluding  Indians  not  taxed,  three-fifths  of  all 
other  persons.  The  actual  enumeration  shall,  be  made  withhi  three 
years  after  the  first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as  they 
shall  by  law  direct.  The  number  of  representatives  shall  not  exceed 
one  for  every  thirty  thousand,  but  each  State  shall  have  at  least  one 
(  282  ) 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  283 

representative;  and  until  such  enumeration  shall  be  made,  the  State 
of  New  Hampshire  shall  be  entitled  to  choose  three;  Massachusetts, 
eight;  Rhode  Island  and  Providence  Plantations,  one;  Connecticut, 
five;  New  York,  six;  New  Jersey,  four;  Pennsylvania,  eight;  Dela- 
ware, one;  Maryland,  six;  Virginia,  ten;  North  Carolina,  five;  South 
Carolina,  five;  and  Georgia,  three. 

When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

The  House  of  Representatives  shall  choose  their  Speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment. 

SEC.  3.  The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six 
years;  and  each,  senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated 
at  the  expiration  of  the  second  year;  of  the  second  class,  at  the 
expiration  of  the  fourth  year;  and  of  the  third  class,  at  the  expiration 
of  the  sixth  year,  so  that  one-third  may  be  chosen  every  second  year; 
and  if  vacancies  happen  by  resignation,  or  otherwise,  during  the 
recess  of  the  Legislature  of  any  State,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of  the  Legisla- 
ture, which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  senator  who  shall  not  have  attained  to  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  for 
which  he  shall  be  chosen. 

The  Vice  President  of  the  United  States  shall  be  president  of  the 
Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  president 
pro  tempore,  in  the  absence  of  the  Vice  President,  or  when  he  shall 
exercise  the  office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside.  And  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office 


284       •     THE  CONSTITUTION  OF  THE  UNITED  STATES. 

of  honor,  trust,  or  profit  under  the  United  States;  but  the  party  con- 
victed shall  nevertheless  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment,  according  to  law. 

SEC.  4.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  the  Congress  may  at  any  time,  by  law,  make 
or  alter  such  regulations,  except  as  to  the  places  of  choosing  senators. 

The  Congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall, 
by  law,  appoint  a  different  day. 

SEC.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  be  authorized  to  compel  the  attendance  of  absent 
members,  in  such  manner  and  under  such  penalties  as  each  house 
may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  concurrence  of  two- 
thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time 
to  time  publish  the  same,  excepting  such  parts  as  may  in  their  judg- 
ment require  secrecy;  and  the  yeas  and  nays  of  the  members  of  either 
house  on  any  question  shall,  at  the  desire  of  one-fifth  of  those  present, 
be  entered  on  the  journal. 

Neither  house,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

SEC.  6.  The  senators  and  representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the 
treasury  of  the  United  States.  They  shall  in  all  cases,  except  treason, 
felony,  and  breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective  houses,  and  in  going 
to  and  returning  from  the  same;  and  for  any  speech  or  debate  in  either 
house  they  shall  not  be  questioned  in  any  other  place. 

No  senator  or  representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the 
United  States,  which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such  time;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office. 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  285 

SEC.  7.  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives;  but  the  Senate  may  propose  or  concur  with  amend- 
ments, as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States;  if  he  approve,  he  shall  sign  it;  but  if 
not,  he  shall  return  it,  with  his  objections,  to  that  house  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If  after  such 'reconsideration 
two-thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  house,  by  which  it  shall 
likewise  be  reconsidered;  and  if  approved  by  two-thirds  of  that  house, 
it  shall  become  a  law.  But  in  all  such  cases,  the  votes  of  both  houses 
shall  be  determined  by  yeas  and  nays,  and  the  names  of  the  persons 
voting  for  and  against  the  bill  shall  be  entered  on  the  journal  of  each 
house  respectively.  If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sunday  excepted)  after  it  shall  have  been  presented 
to  him,  the  same  shall  be  a  law  in  like  manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  adjournment  prevent  its  return;  in  which 
case  it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the 
Senate  and  the  House  of  Representatives  may  be  necessary -(except 
on  a  question  of  adjournment)  shall  be  presented  to  the  President  of 
the  United  States;  and  before  the  same  shall  take  effect,  shall  be 
approved  by  him,  or,  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  Senate  and  House  of  Representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

SEC.  8.     The  Congress  shall  have  power — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay  the 
debts  and  provide  for  the  common  defense  and  general  welfare  of  the 
United  States;  but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes; 

To  establish  a  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures; 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States; 


286  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

To  establish  post  offices  and  post  roads; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing, 
for  limited  times,  to  authors  and  inventors,  the  exclusive  right  to  their 
respective  writings  and  discoveries; 

To  constitute  tribunals  inferior  to  the  Supreme  Court; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offenses  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years; 

To  provide  and  maintain  a  navy; 

To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions; 

To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the  serv- 
ice of  the  United  States,  reserving  to  the  States  respectively  the 
appointment  of  the  officers,  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  Congress; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  partic- 
ular States,  and  the  acceptance  of  Congress,  become  the  seat  of  the 
Government  of  the  United  States,  ^pnd  to  exercise  like  authority  over 
all  places  purchased  by  the  consent  of  the  Legislature  of  the  State 
in  which  the  same  shall  be,  for  the  erection  of  forts,  magazines,  arse- 
nals, dockyards,  and  other  needful  buildings;  and — 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  power  vested  by 
this  Constitution  in  the  Government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

SEC.  9.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  year  one  thousand  eight  hundred 
and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  importation,  not 
exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it. 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  287 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another;  nor  shall 
vessels  bound  to  or  from  one  State,  be  obliged  to  enter,  clear,  or  pay 
duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law;  and  a  regular  statement  and  account  of 
the  receipts  and  expenditures  of  all  public  money  shall  be  published 
from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States;  and  no 
person  holding  any  office  of  profit  or  trust  under  them,  shall,  without 
the  consent  of  the  Congress,  accept  of  any  present,  emolument,  office, 
or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  State. 

SEC.  10.  No  State  shall  enter  into  any  treaty,  alliance,  or  confed- 
eration; grant  letters  of  marque  and  reprisal;  coin  money;  emit  bills 
of  credit;  make  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing 
the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely  nec- 
essary for  executing  its  inspection  laws;  and  the  net  produce  of  all 
duties  and  imposts  laid  by  any  State  on  imports  or  exports,  shall  be 
for  the  use  of  the  treasury  of  the  United  States;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  on 
tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger 
as  will  not  admit  of  delay. 

ARTICLE  II. 

SECTION  I.  The  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  office  during  the 
term  of  four  years,  and,  together  with  the  Vice  President  chosen  for 
the  same  term,  be  elected  as  follows: — 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof 
may  direct,  a  number  of  electors,  equal  to  the  whole  number  of  sena- 


288  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

tors  and  representatives  to  which  the  State  may  be  entitled  in  the 
Congress;  but  no  senator  or  representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an 
elector. 

The  Congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes;  which  day  shall  be 
the  same  throughout  the  United  States. 

No  person,  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible 
to  the  office  of  President;  neither  shall  any  person  be  eligible  to  that 
office  who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and 
been  fourteen  years  a  resident  within  the  United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice  President,  and  the  Con- 
gress may  by  law  provide  for  the  case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice  President,  declaring  what 
officer  shall  then  act  as  President,  and  such  officer  shall  act  accord- 
ingly, until  the  disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation, which  shall  neither  be  increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the  United  States,  or 
any  of  them. 

Before  he  enters  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation: — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the 
office  of  President  of  the  United  States,  and  will,  to  the  best  of  my 
ability,  preserve,  protect,  and  defend  the  Constitution  of  the  United 
States." 

SEC.  2.  The  President  shall  be  Commander  in  Chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several  States, 
when  called  into  the  actual  service  of  the  United  States;  he  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the  duties  of  their 
respective  offices,  and  he  shall  have  power  to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States,  except  in  cases  of  im- 
peachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  289 

concur;  and  he  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,shall  appoint  ambassadors  and  other  public  ministers 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  law;  but  the  Congress  may  by 
law  vest  the  appointment  of  such  inferior  officers  as  they  think  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  de- 
partments. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions, 
which  shall  expire  at  the  end  of  their  next  session. 

SEC.  3.  He  shall  from  time  to  time  give  to  the  Congress  informa- 
tion of  the  state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient;  he  may,  on 
extraordinary  occasions,  convene  both  houses,  or  either  of  them,  and 
in  case  of  disagreement  between  them,  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he  shall  think 
proper;  he  shall  receive  ambassadors  and  other  public  ministers;  he 
shall  take  care  that  the  laws  be  faithfully  executed,  and  shall  commis- 
sion all  the  officers  of  the  United  States. 

SEC.  4.  The  President,  Vice  President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for,  and 
conviction  of,  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. 

ARTICLE  III. 

SECTION  i.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Con- 
gress may  from  tin.e  to  time  ordain  and  establish.  The  judges,  both 
of  the  supreme  and  inferior  courts,  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services  a  com- 
pensation, which  shall  not  be  diminished  during  their  continuance  in 
office. 

SEC.  2.  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority;  to 
all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls; 
to  all  cases  of  admiralty  and  maritime  jurisdiction;  to  controversies 
to  which  the  United  States  shall  be  a  party;  to  controversies  between 
two  or  more  States;  between  a  State  and  citizens  of  another  State; 


THE  CONSTITUTION  OF  THE  UNITED  STATES. 

between  citizens  of  different  States;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  States,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls, and  those  in  which  a  State  shall  be  party,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions  and  under  such  regulations  as 
the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury;  and  such  trial  shall  be  held  in  the  State  where  the  said  crime 
shall  have  been  committed;  but  when  not  committed  within  any  State, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress  may  by  law 
have  directed. 

SEC.  3.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort. 

No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of  trea- 
son, but  no  attainder  of  treason  shall  work  corruption  of  blood,  or 
forfeiture  except  during  the  life  of  the  person  attainted. 

ARTICLE  IV. 

SECTION  i.  Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other  State. 
And  the  Congress  may  by  general  laws  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

SEC.  2.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall  on 
demand  of  the  executive  authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime. 

No  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor,  but  shall 
be  delivered  up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  2QI 

SEC.  3.  New  States  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  new  State  shall  be  formed  or  erected  within  the  juris- 
diction of  any  other  State,  nor  any  State  be  formed  by  the  junction  of 
two  or  more  States,  or  parts  of  States,  without  the  consent  of  the 
Legislatures  of  the  States  concerned,  as  well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States;  and  nothing  in  this  Constitution  shall 
be  so  construed  as  to  prejudice  any  claims  of  the  United  States,  or  of 
any  particular  State. 

SEC.  4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of 
them  against  invasion,  and,  on  application  of  the  Legislature  or  of  the 
executive  (when  the  Legislature  cannot  be  convened),  against  domes- 
tic violence. 

ARTICLE  V. 

The  Congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitution,  or  on  the 
application  of  the  Legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments,  which,  in  either  case, 
shall  be  valid,  to  all  intents  and  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  Legislatures  of  three-fourths  of  the  several  States, 
or  by  conventions  in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress;  provided,  that 
no  amendment  which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  Article,  and  that  no  State, 
without  its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the  Sen- 
ate. 

ARTICLE  VI. 

All  debts  contracted  and  engagements  entered  into  before  the  adop- 
tion of  the  Constitution,  shall  be  as  valid  against  the  United  States 
under  this  Constitution  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding. 
19 


2Q2  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

The  senators  and  representatives  before  mentioned,  and  the  mem- 
bers of  the  several  State  Legislatures,  and  all  executive  and  judicial 
officers,  both  of  the  United  States  and  of  the  several  States,  shall  be 
bound  by  oath  or  affirmation  to  support  this  Constitution;  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States. 

ARTICLE  VII. 

The  ratification  of  the  conventions  of  nine  States  shall  be  sufficient 
for  the  establishment  of  this  Constitution  between  the  States  so  ratify- 
ing the  same. 


AMENDMENTS  TO  THE  CONSTITUTION. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom 
of  speech,  or  of  the  press;  or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  government  for  a  redress  of  grievances. 

ARTICLE  II. 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free 
State,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  with- 
out the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to 
be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  shall 
not  be  violated;  and  no  warrants  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  describing  the  place 
to  be  searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury, 


THE  CONSTITUTION  OF  THE  UNITED  STATES  293 

except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia, 
when  in  actual  service,  in  time  of  war  and  public  danger;  nor  shall 
any  person  be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy 
of  life  or  limb,  nor  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself;  nor  to  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law;  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation. 

ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor,  and  to  have  the  assistance  of  counsel  for  his 
defense. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  reexamined  in  any  court 
of  the  United  States  than  according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  be 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tive4y,  or  to  the  people. 

ARTICLE  XI. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State, 


294  THE  CONSTITUTION  OF  THE  UNITED  STATES. 


ARTICLE  XII. 

The  electors  shall  meet  in  their  respective  States,  and  vote  by  bal- 
lot for  President  and  Vice  President,  one  of  whom,  at  least,  shall  not 
be  an  inhabitant  of  the  same  State  with  themselves.  They  shall  name 
in  their  ballots  the  person  voted  for  as  President,  and  in  distinct  bal- 
lots the  person  voted  for  as  Vice  President;  arrd  they  shall  make  dis- 
tinct lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
voted  for  as  Vice  President,  and  of  the  number  of  votes  for  each, 
which  lists  they  shall  sign  and  certify,  and  transmit,  sealed,  to  the  seat 
of  the  Government  of  the  United  States,  directed  to  the  president  of 
the  Senate.  The  president  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted;  the  person  having  the  greatest  number 
of  votes  for  President  shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest  num- 
bers, not  exceeding  three,  on  the  list  of  those  voted  for  as  President, 
the  House  of  Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one  vote;  a  quorum 
for  this  purpose  shall  consist  of  a  member  or  members  from  two-thirds 
of  the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  not  choose  a  Pres- 
ident, whenever  the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice  President  shall 
act  as  President,  as  in  the  case  of  the  death  or  other  Constitutional 
disability  of  the  President.  The  person  having  the  greatest  number 
of  votes  as  Vice  President  shall  be  the  Vice  President,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed;  and  if  no 
person  have  a  majority,  then  from  the  two  highest  numbers  on  the 
list,  the  Senate  shall  choose  the  Vice  President;  a  quorum  for  the 
purpose  shall  consist  of  two-thirds  of  the  whole  number  of  senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice. 
But  no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice  President  of  the  United  States. 

ARTICLE  XIII. 

SECTION  i.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime,  whereof  the  party  shall  have  been  duly  con- 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  295 

victed,  shall  exist  within  the  United  States,  or  any  place  subject  to 
their  jurisdiction. 

SEC.  2.  Congress  shall  have  power  to  enforce  this  article  by- 
appropriate  legislation. 

ARTICLE  XIV. 

SECTION  i.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States,  and  of  the  State  in  which  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of  law,  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

SEC.  2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole  num- 
ber of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  Presi- 
dent and  Vice  President  of  the  United  States,  representatives  in  Con- 
gress, the  executive  and  judicial  officers  of  a  State,  or  the  members  of 
the  Legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of 
such  State  being  twenty-one  years  of  age,  ajid  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in  rebellion  or 
other  crime,  the  basis  of  representation  therein  shall  be  reduced  in 
the  proportion  which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such 
State. 

SEC.  3.  No  person  shall  be  a  senator  or  representative  in  Con- 
gress, or  elector  of  President  and  Vice  President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath  as  a  member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  State  Legislature, 
or  as  an  executive  or  judicial  officer  of  any  State,  to  support  the  Con- 
stitution of  the  United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a  vote  of  two-thirds  of  each  house, 
remove  such  disability. 

SEC.  4.  The  validity  of  the  public  debt  of  the  United  States 
authorized  by  law,  including  debts  incurred  by  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any  State 


296  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

shall  assume  to  pay  any  debt  or  obligation  incurred  in  aid  of  insurrec- 
tion or  rebellion  against  the  United  States,  or  any  claim  for  the  loss 
or  emancipation  of  any  slave;  but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void. 

SEC.  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

SECTION  i.  The  right  of  the  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any  State, 
on  account  of  race,  color,  or  previous  condition  of  servitude. 

SEC.  2.  The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 


APPENDIX  C. 


SUPREME  COURT  OF  THE  UNITED  STATES 

DRED  SCOTT,  Plaintiff  in  Error, 

vs. 
JOHN  F.  A.  SANDFORD. 

DECEMBER  TERM,  1856. 

THIS  case  was  brought  up,  by  writ  of  error,  from  the  Circuit  Court 
of  the  United  States  for  the  district  of  Missouri. 

It  was  an  action  of  trespass  vi  et  armis  instituted  in  the  Circuit 
Court  by  Scott  against  Sandford. 

Prior  to  the  institution  of  the  present  suit,  an  action  was  brought 
by  Scott  for  his  freedom  in  the  Circuit  Court  of  St.  Louis  County 
(State  court),  where  there  was  a  verdict  and  judgment  in  his  favor. 
On  a  writ  of  error  to  the  Supreme  Court  of  the  State,  the  judgment 
below  was  reversed,  and  the  case  remanded  to  the  Circuit  Court, 
where  it  was  continued  to  await  the  decision  of  the  case  now  in 
question. 

The  declaration  of  Scott  contained  three  counts:  One,  that  Sand- 
ford  had  assaulted  the  plaintiff;  one,  that  he  had  assaulted  Harriet 
Scott,  his  wife;  and  one,  that  he  had  assaulted  Eliza  Scott  and  Lizzie 
Scott,  his  children. 

Sandford  appeared,  and  filed  the  following  plea: — 

DRED  SCOTT          ^ 

vs.  V  Plea  to  the  jurisdiction  of  the  court. 

JOHN  F.  A.  SANDFORD.  J 

APRIL  TERM,  1854. 

And  the  said  John  F.  A.  Sandford,  in  his  own  proper  person, 
comes  and  says  that  this  court  ought  not  to  have  or  take  further  cog- 

(297) 


298  THE    DRED    SCOTT    DECISION. 

nizance  of  the  action  aforesaid,  because,  he  says,  that  said  cause  of 
action,  and  each  and  every  of  them  (if  any  such  have  accrued  to  the 
said  Dred  Scott),  accrued  to  the  said  Dred  Scott  out  of  the  jurisdic- 
tion of  this  court,  and  exclusively  within  the  jurisdiction  of  the  courts 
of  the  State  of  Missouri,  for  that,  te  wit:  The  said  plaintiff,  Dred 
Scott,  is  not  a  citizen  of  the  State  of  Missouri,  as  alleged  in  his  dec- 
laration, because  he  is  a  negro  of  African  descent.  His  ancestors 
were  of  pure  African  blood,  and  were  brought  into  this  country  and 
sold  as  negro  slaves,  and  this  the  said  Sandford  is  ready  to  verify. 
Wherefore  he  prays  judgment,  whether  this  court  can  or  will  take 
further  cognizance  of  the  action  aforesaid. 

JOHN  F.  A.  SANDFORD. 

To  this  plea  there  was  a  demurrer  in  the  usual  form,  which  was 
argued  in  April,  1854,  when  the  court  gave  judgment  that  the  demurrer 
should  be  sustained. 

In  May,  1854,  the  defendant,  ir_  pursuance  of  an  agreement  between 
counsel,  and  with  the  leave  of  the  court,  pleaded  in  bar  of  the  action: 

1.  Not  guilty. 

2.  That  the  plaintiff  was  a  negro  slave,  the  lawful  property  of  the 
defendant,  and,  as  such,  the   defendant  gently  laid  his  hands  upon 
him,  and  thereby  had  only  restrained  him,  as  the  defendant  had  a 
right  to  do. 

3.  That  with   respect  to  the  wife  and  daughters  of  the  plaintiff, 
in  the  second  and  third  counts  of  the  declaration   mentioned,  the 
defendant  had,  as  to  them,  only  acted  in  the  same  manner,  and  in 
virtue  of  the  same  legal  right. 

In  the  first  of  these  pleas  the  plaintiff  joined  issue,  and  to  the 
second  and  third  filed  replications  alleging  that  the  defendant,  of  his 
own  wrong  and  without  the  cause  in  his  second  and  third  pleas 
alleged,  committed  the  trespasses,  etc. 

The  counsel  then  filed  the  following  agreed  statement  of  facts,  viz.: 
In  the  year  1834  the  plaintiff  was  a  negro  slave  belonging  to  Dr. 
Emerson,  who  was  a  surgeon  in  the  army  of  the  United  States.  In 
that  year,  1834,  said  Dr.  Emerson  took  the  plaintiff  from  the  State  of 
Missouri  to  the  military  post  at  Rock  Island,  in  the  State  of  Illinois, 
and  held  him  ther~  as  a  slave  until  the  month  of  April  or  May,  1836. 
At  the  time  last  mentioned  said  Dr.  Emerson  removed  the  plaintiff 
from  said  military  post  at  Rock  Island  to  the  military  post  at  Fort 
Snelling,  situate  on  the  we=-t  bank  of  the  Mississippi  River,  in  the 
territory  known  as  Upper  Louisiana,  acquired  by  the  United  States 


THE    DRED    SCOTT    DECISION.  299 

of  France,  and  situate  north  of  the  latitude  of  36°  30'  north,  and  north 
of  the  State  of  Missouri.  Said  Dr.  Emerson  held  the  plaintiff  in 
slavery  at  Fort  Snelling  trom  said  last-mentioned  date  until  the  year 
1838. 

In  the  year  1835  Harriet,  who  is  named  in  the  second  count  of  the 
plaintiffs  declaration,  was  the  negro  slave  of  Major  Taliaferro,  who 
belonged  to  the  army  of  the  United  States.  In  that  year,  1835,  said 
Major  Taliaferro  took  said  Harriet  to  said  Fort  Snelling,  a  military 
post,  situated  as  hereinbefore  stated,  and  kept  her  there  as  a  slave 
until  the  year  1836,  and  then  sold  and  delivered  her  as  a  slave  at  said 
Fort  Snelling  unto  the  said  Dr.  Emerson  hereinbefore  named.  Said 
Dr.  Emerson  held  said  Harriet  in  slavery  at  said  Fort  Snelling  until 
the  year  1838. 

In  the  year  1836  the  plaintiff  and  said  Harriet,  at  said  Fort  Snell- 
ing, with  the  consent  of  said  Dr.  Emerson,  who  then  claimed  to  be 
their  master  and  owner,  intermarried,  and  took  each  other  for  hus- 
band and  wife.  Eliza  and  Lizzie,  named  in  the  third  count  of  the 
plaintiff's  declaration,  are  the  fruit  of  that  marriage.  Eliza  is  about 
fourteen  years  old,  and  was  born  on  board  the  steamboat  Gipsey, 
north  of  the  north  line  of  the  State  of  Missouri,  and  upon  the  river 
Mississippi.  Lizzie  is  about  seven  years  old,  and  was  born  in  the 
State  of  Missouri,  at  the  military  post  called  Jefferson  Barracks. 

In  the  year  1838  said  Dr.  Emerson  removed  the  plaintiff  and  said 
Harriet,  and  their  said  daughter  Eliza,  from  said  Fort  Snelling  to  the 
State  of  Missouri,  where  they  have  ever  since  resided. 

Before  the  commencement  of  this  suit,  said  Dr.  Emerson  sold  and 
conveyed  the  plaintiff,  said  Harriet,  Eliza,  and  Lizzie,  to  the  de- 
fendant, as  slaves,  and  the  defendant  has  ever  since  claimed  to  hold 
them,  and  each  of  them,  as  slaves. 

At  the  times  mentioned  in  the  plaintiff's  declaration,  the  defendant, 
claiming  to  be  owner  as  aforesaid,  laid  his  hands  upon  said  plaintiff 
Harriet,  Eliza,  and  Lizzie,  and  imprisoned  them,  doing  in  this  respecu 
however,  no  more  than  what  he  might  lawfully  do  if  they  were  of 
right  his  slaves  at  such  times. 

Further  proof  may  be  given  on  the  trial  for  either  party. 

It  is  agreed  that  Dred  Scott  brought  suit  for  his  freedom  in  UK' 
Circuit  Court  of  St.  Louis  County;  that  there  was  a  verdict  and  judg- 
ment in  his  favor;  that  on  a  writ  of  error  to  the  Supreme  Court  the 
judgment  below  was  reversed,  and  the  same  remanded  to  the  Circuit 
Court,  where  it  has  been  continued  to  await  the  decision  of  this  case. 


3OO  THE   DRED   SCOTT    DECISION. 

In  May,  1854,  the  cause  went  before  a  jury,  who  found  the  lollow- 
ing  verdict,  viz.:  "As  to  the  first  issue  joined  in  this  case,  we  of  the 
jury  find  the  defendant  not  guilty;  and  as  to  the  issue  secondly  above 
joined,  we  of  the  jury  find  that,  before  and  at  the  time  when,  etc.,  in 
the  first  count  mentioned,  the  said  Dred  Scott  was  a  negro  slave,  the 
lawful  property  of  the  defendant;  and  as  to  the  issue  thirdly  above 
joined,  we,  the  jury,  find  that,  before  and  at  the  time  when,  etc.,  in 
the  second  and  third  counts  mentioned,  the  said  Harriet,  wife  of  said 
Dred  Scott,  and  Eliza  and  Lizzie,  the  daughters  of  the  said  Dred 
Scott,  were  negro  slaves,  the  lawful  property  of  the  defendant." 

Whereupon,  the  court  gave  judgment  for  the  defendant. 
After  an  ineffectual  motion  for  a  new  trial,  the  plaintiff  filed  the 
following  bill  of  exceptions. 

On  the  trial  of  this  cause  by  the  jury,  the  plaintiff,  to  maintain  the 
issues  on  his  part,  read  to  the  jury  the  following  agreed  statement  of 
facts  (see  agreement  above).  No  further  testimony  was  given  to  the 
jury  by  either  party.  Thereupon  the  plaintiff  moved  the  court  to  give 
to  the  jury  the  following  instruction,  viz.: — 

"That,  upon  the  facts  agreed  to  by  the  parties,  they  ought  to  find 
for  the  plaintiff.  The  court  refused  to  give  such  instruction  to  the 
jury,  and  the  plaintiff,  to  such  refusal,  then  and  there  duly  excepted." 

The  court  then  gave  the  following  instruction  to  the  jury,  on 
motion  of  the  defendant: — 

"  The  jury  are  instructed  that,  upon  the  facts  in  this  case,  the  law 
is  with  the  defendant."  The  plaintiff  excepted  to  this  instruction. 

Upon  these  exceptions  the  case  came  up  to  this  court. 

It  was  argued  at  December  term,  1855,  an<^  ordered  to  be  reargued 
at  the  present  term. 

It  was  now  argued  by  Mr.  Blair  and  Mr.  G.  F.  Curtis  for  the 
plaintiff  in  error,  and  by  Mr.  Geyer  and  Mr.  Johnson  for  the  defendant 
in  error. 

The  reporter  regrets  that  want  of  room  will  not  allow  him  to  give 
the  arguments  of  counsel,  but  he  regrets  it  the  less  because  the  sub- 
ject is  thoroughly  examined  in  the  opinion  of  the  court,  the  opinions 
of  the  concurring  judges,  and  the  opinions  of  the  judges  who  dissented 
from  the  judgment  of  the  court. 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

This  case  has  been  twice  argued.  After  the  argument  at  the  last 
term,  differences  of  opinion  were  found  to  exist  among  the  members 
of  the  court;  and  as  the  questions  in  controversy  are  of  the  highest 


-      THE    DRED    SCOTT    DECISION.  3OI 

importance,  and  the  court  was  at  that  time  much  pressed  by  the  ordi- 
nary business  of  the  term,  it  was  deemed  advisable  to  continue  the 
case,  and  direct  a  reargument  on  some  of  the  points,  in  order  that  we 
might  have  an  opportunity  of  giving  to  the  whole  subject  a  more 
deliberate  consideration.  It  has  accordingly  been  again  argued  by 
counsel,  and  considered  by  the  court,  and  I  now  proceed  to  deliver 
its  opinion. 

There  are  two  leading  questions  presented  by  the  record: — 

1.  Had  the  Circuit  Court  of  the  United  States  jurisdiction  to  hear 
and  determine  the  case  between  these  parties  ?    And —      *• 

2.  If  it  had  jurisdiction,  is  the  judgment  it  has  given  erroneous  or 
not? 

The  plaintiff  in  error,  who  was  also  the  plaintiff  in  the  court  below, 
was,  with  his  wife  and  children,  held  as  slaves  by  the  defendant  in 
the  State  of  Missouri;  and  he  brought  this  action  in  the  Circuit  Court 
of  the  United  States  for  that  district,  to  assert  the  title  of  himself  and 
his  family  to  freedom. 

The  declaration  is  in  the  form  usually  adopted  in  that  State  to  try 
questions  of  this  description,  and  contains  the  averment  necessary  to 
give  the  court  jurisdiction;  that  he  and  the  defendant  are  citizens 
of  different  States;  that  is,  that  he  is  a  citizen  of  Missouri,  and  the 
defendant  a  citizen  of  New  York. 

The  defendant  pleaded  in  abatement  to  the  jurisdiction  of  the 
court,  that  the  plaintiff  was  not  a  citizen  of  the  State  of  Missouri,  as 
alleged  in  his  declaration,  being  a  negro  of  African  descent,  whose 
ancestors  were  of  pure  African  blood,  and  who  were  brought  into 
this  country  and  sold  as  slaves. 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined  in 
demurrer.  The  court  overruled  the  plea,  and  gave  judgment  that  the 
defendant  should  answer  over.  And  he  thereupon  put  in  sundry  pleas 
in  bar,  upon  which  issues  were  joined,  and  at  the  trial  the  verdict  and 
judgment  were  in  his  favor.  Whereupon  the  plaintiff  brought  this 
writ  of  error. 

Before  we  speak  of  the  pleas  in  bar,  it  will  be  proper  to  dispose  of 
the  questions  which  have  arisen  on  the  plea  in  abatement. 

That  plea  denies  the  right  of  the  plaintiff  to  sue  in  a  court  of  the 
United  States,  for  the  reasons  therein  stated. 

If  the  question  raised  by  it  is  legally  before  us,  and  the  court 
should  be  of  opinion  that  the  facts  stated  in  it  disqualify  the  plaintiff 
from  becoming  a  citizen,  in  the  sense  in  which  that  word  is  used  in 


302  THE    DRED    SCOTT    DECISION. 

the  Constitution  of  the  United  States,  then  the  judgment  of  the  Circuit 
Court  is  erroneous,  and  must  be  reversed. 

It  is  suggested,  however,  that  this  plea  is  not  before  us,  and  that, 
as  the  judgment  in  the  court  below  on  this  plea  was  in  favor  of  the 
plaintiff,  he  does  not  seek  to  reverse  it,  or  bring  it  before  the  court 
for  revision  by  his  writ  of  error;  and  also  that  the  defendant  waived 
this  defense  by  pleading  over,  and  thereby  admitted  the  jurisdiction 
of  the  court. 

But,  in  making  this  objection,  we  think  the  peculiar  and  limited 
jurisdiction  of  courts  of  the  United  States  has  not  been  averted  to. 
This  peculiar  and  limited  jurisdiction  has  made  it  necessary  in  these 
courts  to  adopt  different  rules  and  principles  of  pleading,  so  far  as 
jurisdiction  is  concerned,  from  those  which  regulate  courts  of  com- 
mon law  in  England,  and  in  the  different  States  of  the  Union  which 
have  adopted  the  common-law  rules. 

In  these  last-mentioned  courts,  where  their  character  and  rank  are 
analogous  to  that  of  a  Circuit  Court  of  the  United  States;  in  other 
words,  where  they  are  what  the  law  terms  courts  of  general  jurisdic- 
tion, they  are  presumed  to  have  jurisdiction,  unless  the  contrary 
appears.  No  averment  in  the  pleadings  of  the  plaintiff  is  necessary 
in  order  to  give  jurisdiction.  If  the  defendant  objects  to  it,  he  must 
plead  it  specially,  and,  unless  the  fact  on  which  he  relies  is  found  to 
be  true  by  a  jury,  or  admitted  to  be  true  by  the  plaintiff,  the  jurisdic- 
tion cannot  be  disputed  in  an  appellate  court. 

Now,  it  is  not  necessary  to  inquire  whether  in  courts  of  that 
description  a  party  who  pleads  over  in  bar,  when  a  plea  to  the  juris- 
diction has  been  ruled  against  him,  does  or  does  not  waive  his  plea; 
nor  whether,  upon  a  judgment  in  his  favor  on  the  pleas  in  bar,  and  a 
writ  of  error  brought  by  the  plaintiff,  the  question  upon  the  plea  in 
abatement  would  be  open  for  revision  in  the  appellate  court.  Cases 
that  may  have  been  decided  in  such  courts,  or  rules  that  may  have 
been  laid  down  by  common-law  pleaders,  can  have  no  influence  in 
the  decision  in  this  court,  because,  under  the  Constitution  and  laws 
of  the  United  States,  the  rules  which  govern  the  pleadings  in  its 
courts  in  questions  of  jurisdiction  stand  on  different  principles,  and 
are  regulated  by  different  laws. 

This  difference  arises,  as  we  have  said,  from  the  peculiar  char- 
acter of  the  Government  of  the  United  States;  for,  although  it  is 
sovereign  and  supreme  in  its  appropriate  sphere  of  action,  yet  it  does 
not  possess  all  the  powers  which  usually  belong  to  the  sovereignty  of 


THE    DRED    SCOTT    DECISION.  303 

a  nation.  Certain  specified  powers,  enumerated  in  the  Constitution, 
have  been  conferred  upon  it;  and  neither  the  legislative,  executive, 
nor  judicial  departments  of  the  government  can  lawfully  exercise  any 
authority  beyond  the  limits  marked  out  by  the  Constitution.  And  in 
regulating  the  judicial  department,  the  cases  in  which  the  courts  of 
the  United  States  shall  have  jurisdiction  are  particularly  and  specif- 
ically enumerated  and  defined;  and  they  are  not  authorized  to  take 
cognizance  of  any  case  which  does  not  come  within  the  description 
therein  specified.  Hence,  when  a  plaintiff  sues  in  a  court  of  the 
United  States,  it  is  necessary  that  he  should  show  in  his  pleading 
that  the  suit  he  brings  is  within  the  jurisdiction  of  the  court,  and  that 
he  is  entitled  to  sue  there.  And  if  he  omits  to  do  this,  and  should, 
by  any  oversight  of  the  Circuit  Court,  obtain  a  judgment  in  his  favor, 
the  judgment  would  be  reversed  in  the  appellate  court  for  want  of 
jurisdiction  in  the  court  below.  The  jurisdiction  would  not  be  pre- 
sumed, as  in  the  case  of  a  common-law  English  or  State  court,  unless 
the  contrary  appeared.  But  the  record,  when  it  conies  before  the 
appellate  court,  must  show  affirmatively  that  the  inferior  court  had 
authority,  under  the  Constitution,  to  hear  and  determine  the  case. 
And  if  the  plaintiff  claims  a  right  to  sue  in  a  Circuit  Court  of  the 
United  States,  under  that  provision  of  the  Constitution  which  gives 
jurisdiction  in  controversies  between  citizens  of  different  States,  he 
must  distinctly  aver  in  his  pleading  that  they  are  citizens  of  different 
States,  and  he  cannot  maintain  his  suit  without  showing  that  fact  in 
the  pleadings. 

This  point  was  decided  in  the  case  of  Bingham  vs.  Cabot  (in  3 
Dall.  382),  and  ever  since  adhered  to  by  the  court.  And  in  Jackson 
vs.  Ashton  (8  Pet.  148)  it  was  held  that  the  objection  to  which  it  was 
open  could  not  be  waived  by  the  opposite  party,  because  consent  of 
parties  could  not  give  jurisdiction. 

It  is  needless  to  accumulate  cases  on  this  subject.  Those  already 
referred  to,  and  the  cases  of  Capron  vs.  Van  Noorden  (in  2  Cr.  126), 
and  Montalet  vs.  Murray  (4  Cr.  46),  are  sufficient  to  show  the  rule  of 
which  we  have  spoken.  The  case  of  Capron  vs.  Van  Noorden  strik- 
ingly illustrates  the  difference  between  a  common-law  court  and  a 
court  of  the  United  States. 

If,  however,  the  fact  of  citizenship  is  averred  in  the  declaration, 
and  the  defendant  does  not  deny  it,  and  put  it  in  issue  by  plea  in 
abatement,  he  cannot  offer  evidence  at  the  trial  to  disprove  it,  and, 
consequently,  cannot  avail  himself  of  the  objection  in  the  appellate 


304  THE    DRED   SCOTT    DECISION. 

court,  unless  the  delect  should  be  apparent  in  some  other  part  of  the 
record;  for,  if  there  is  no  plea  in  abatement,  and  the  want  of  jurisdic- 
tion does  not  appear  in  any  other  part  of  the  transcript  brought  up  by 
the  writ  of  error,  the  undisputed  averment  of  citizenship  in  the  dec- 
laration must  be  taken  in  this  court  to  be  true.  In  this  case  the  citi- 
zenship is  averred,  but  it  is  denied  by  the  defendant  in  the  manner 
required  by  the  rules  of  pleading,  and  the  fact  upon  which  the  denial 
is  based  is  admitted  by  the  demurrer.  And,  if  the  plea  and  demurrer, 
and  judgment  of  the  court  below  upon  it,  are  before  us  upon  this 
record,  the  question  to  be  decided  is  whether  the  facts  stated  in  the 
plea  are  sufficient  to  show  that  the  plaintiff  is  not  entitled  to  sue  as  a 
citizen  in  a  court  of  the  United  States. 

We  think  they  are  before  us.  The  plea  in  abatement  and  the 
judgment  of  the  court  upon  it  are  a  part  of  the  judicial  proceedings  in 
the  Circuit  Court,  and  are  there  recorded  as  such,  and  a  writ  of  error 
always  brings  up  to  the  Superior  Court  the  whole  record  of  the  pro- 
ceedings in  the  court  below.  And  in  the  case  of  the  United  States 
vs.  Smith  (n  Wheat.  172)  this  court  said,  that  the  case  being  brought 
up  by  writ  of  error,  the  whole  record  was  under  the  consideration  of 
this  court  And  this  being  the  case  in  the  present  instance,  the 
plea  in  abatement  is  necessarily  under  consideration;  and  it  becomes, 
therefore,  our  duty  to  decide  whether  the  facts  stated  in  the  plea  are 
or  are  not  sufficient  to  show  that  the  plaintiff  is  not  entitled  to  sue  as 
a  citizen  in  a  court  of  the  United  States. 

This  is  certainly  a  very  serious  question,  and  one  that  now  for  the 
first  time  has  been  brought  for  decision  before  this  court.  But  it  is 
brought  here  by  those  who  have  a  right  to  bring  it,  and  it  is  our  duty 
to  meet  it  and  decide  it. 

The  question  is  simply  this:  Can  a  negro,  whose  ancestors  were 
imported  into  this  country,  and  sold  as  slaves,  become  a  member  of 
the  political  community  formed  and  brought  into  existence  by  the 
Constitution  of  the  United  States,  and  as  such  become  entitled  to  all 
the  rights  and  privileges  and  immunities  guaranteed  by  that  instru- 
ment to  the  citizen,  one  of  which  rights  is  the  privilege  of  suing  in  a 
court  of  the  United  States  in  the  cases  specified  in  the  Constitution. 

It  will  be  observed  that  the  plea  applies  to  that  class  of  persons 
only  whose  ancestors  were  negroes  of  the  African  race,  and  imported 
into  this  country,  and  sold  and  held  as  slaves.  The  only  matter  in 
issue  before  the  court,  therefore,  is,  whether  the  descendants  of  such 
slaves,  when  they  shall  be  emancipated,  or  who  are  born  of  parents 


THE    DEED    SCOTT    DECISION.  305 

who  had  become  free  before  their  birth,  are  citizens  of  a  State  in  the 
sense  in  which  the  word  citizen  is  used  in  the  Constitution  of  the 
United  States. .  And  this  being  the  only  matter  in  dispute  on  the 
pleadings,  the  court  must  be  understood  as  speaking  in  this  opinion 
of  that  class  only,  that  is,  of  those  persons  who  are  the  descendants 
of  Africans  who  were  imported  into  this  country,  and  sold  as  slaves. 

The  situation  of  this  population  was  altogether  unlike  that  of  the 
Indian  race.  The  latter,  it  is  true,  formed  no  part  of  the  colonial 
communities,  and  never  amalgamated  with  them  in  social  connections 
or  in  government.  But  although  they  were  uncivilized,  they  were- 
yet  a  free  and  independent  people,  associated  together  in  nations  or 
tribes,  and  governed  by  their  own  laws.  Many  of  these  political  com- 
munities were  situated  in  territories  to  which  the  white  race  claimed 
the  ultimate  right  of  dominion.  But  that  claim  was  acknowledged 
to  be  subject  to  the  right  of  the  Indians  to  occupy  it  as  long  as  they 
thought  proper,  and  neither  the  English  nor  colonial  governments 
claimed  or  exercised  any  dominion  over  the  tribe  or  nation  by  whom 
it  was  occupied,  nor  claimed  the  right  to  the  possession  of  the  terri- 
tory, until  the  tribe  or  nation  consented  to  cede  it.  These  Indian 
governments  were  regarded  and  treated  as  foreign  governments,  as 
much  so  as  if  an  ocean  had  separated  the  red  man  from  the  white, 
and  their  freedom  has  constantly  been  acknowledged,  from  the  time 
of  the  first  emigration  to  the  English  colonies  to  the  present  day,  by 
the  different  governments  which  succeeded  each  other.  Treaties 
have  been  negotiated  with  them,  and  their  alliance  sought  for  in  war, 
and  the  people  who  compose  these  Indian  political  communities  have 
always  been  treated  as  foreigners  not  living  under  our  government. 
It  is  true  that  the  course  of  events  has  brought  the  Indian  tribes  within 
the  limits  of  the  United  States  under  subjection  to  the  white  race,  and 
it  has  been  found  necessary,  for  their  sake  as  wrell  as  our  own,  to 
regard  them  as  in  a  state  of  pupilage,  and  to  legislate  to  a  certain 
extent  over  them  and  the  territory  they  occupy.  But  they  may,  with- 
out doubt,  like  the  subjects  of  any  other  foreign  government,  be 
naturalized  by  the  authority  of  Congress,  and  become  citizens  of  a 
State  and  of  the  United  States;  and,  if  an  individual  should  leave  his 
nation  or  tribe,  and  take  up  his  abode  among  the  white  population, 
he  would  be  entitled  to  all  the  rights  and  privileges  which  would 
belong  to  an  emigrant  from  any  other  foreign  people. 

We  proceed  to  examine  the  case  as  presented  by  the  pleadings. 

The  words  " people  of  the  United  States"  and  "citizens"  are 


306  THE    DRED    SCOTT    DECISION. 

synonymous  terms,  and  mean  the  same  thing.  They  both  describe 
the  political  body  who,  according  to  our  republican  institutions,  form 
the  sovereignty,  and  who  hold  the  power  and  conduct  the  govern- 
ment through  their  representatives.  They  are  what  we  familiarly 
call  the  "sovereign  people,"  and  every  citizen  is  one  of  this  people, 
and  a  constituent  member  of  this  sovereignty.  The  question  before 
us  is  whether  the  class  of  persons  described  in  the  plea  in  abatement 
compose  a  portion  of  this  people,  and  are  constituent  members  of 
this  sovereignty.  We  think  they  are  not,  and  that  they  are  not 
included,  and  were  not  intended  to  be  included,  under  the  word 
"citizens"  in  the  Constitution,  and  can,  therefore,  claim  none  of 
the  rights  and  privileges  which  that  instrument  provides  for  and 
secures  to  citizens  of  the  United  States.  On  the  contrary,  they  were 
at  that  time  considered  as  a  subordinate  and  inferior  class  of  beings, 
who  had  been  subjugated  by  the  dominant  race,  and,  whether  eman- 
cipated or  not,  yet  remained  subject  to  their  authority,  and  had  no 
rights  or  privileges  but  such  a'S  those  who  held  the  power  and  the 
government  might  choose  to  grant  them. 

It  is  not  the  province  of  the  court  to  decide  upon  the  justice  or 
injustice,  the  policy  or  impolicy,  of  these  laws.  The  decision  of  that 
question  belonged  to  the  political  or  law-making  power,  to  those  who 
formed  the  sovereignty  and  framed  the  Constitution.  The  duty  of 
the  court  is  to  interpret  the  instrument  they  have  framed,  with  the 
best  lights  we  can  obtain  on  the  subject,  and  to  administer,  it  as  we 
find  it,  according  to  its  true  intent  and  meaning  when  it  was  adopted. 

In  discussing  this  question  we  must  not  confound  the  rights  of 
citizenship  which  a  State  may  confer  within  its  own  limits,  and  the 
rights  of  citizenship  as  a  member  of  the  Union.  It  does  not  by  any 
means  follow  because  he  has  all  the  rights  and  privileges  of  a  citizen 
of  a  State,  that  he  must  be  a  citizen  of  the  United  States.  He  may 
have  all  of  the  rights  and  privileges  of  the  citizen  of  a  State,  and  yet 
not  be  entitled  to  the  rights  and  privileges  of  a  citizen  in  any  other 
State;  for,  previous  to  the  adoption  of  the  Constitution  of  the  United 
States,  every  State  had  the  undoubted  right  to  confer  on  whomsoever 
it  pleased  the  character  of  citizen,  and  to  endow  him  with  all  its  rights. 
But  this  character  of  course  was  confined  to  the  boundaries  of  the 
State,  and  gave  him  no  rights  or  privileges  in  other  States  beyond 
those  secured  to  him  by  the  laws  of  nations  and  the  comity  of  States. 
Nor  have  the  several  States  surrendered  the  power  of  conferring  these 
rights  and  privileges  by  adopting  the  Constitution  of  the  United  States. 


THE    DRED    SCOTT    DECISION.  307 

Each  State  may  still  confer  them  upon  an  alien,  or  anyone  it  thinks 
proper,  or  upon  any  class  or  description  of  persons,  yet  he  would  not 
be  a  citizen  in  the  sense  in  which  that  word  is  used  in  the  Constitu- 
tion of  the  United  States,  nor  entitled  to  sue  ds  such  in  one  of  its 
courts,  nor  to  the  privileges  and  immunities  of  a  citizen  in  the  other 
States.  The  rights  which  he  would  acquire  would  be  restricted  to 
the  State  which  gave  them.  The  Constitution  has  conferred  on  Con- 
gress the  right  to  establish  a  uniform  rule  of  naturalization,  and  this 
right  is  evidently  exclusive,  and  has  always  been  held  by  this  court 
to  be  so.  Consequently,  no  State,  since  the  adoption  of  the  Consti- 
tution, can  by  naturalizing  an  alien  invest  him  with  the  rights  and 
privileges  secured  to  a  citizen  of  a  State  under  the  Federal  Govern- 
ment, although,  so  far  as  the  State  alone  was  concerned,  he  would 
undoubtedly  be  entitled  to  the  rights  of  a  citizen,  and  clothed  with  all 
the  rights  and  immunities  which  the  Constitution  and  laws  of  the 
State  attached  to  that  character. 

It  is  very  clear,  therefore,  that  no  State  can,  by  any  act  or  law  of 
its  own  passed  since  the  adoption  of  the  Constitution,  introduce  a 
new  member  into  the  political  community  created  by  the  Constitution 
of  the  United  States.  It  cannot  make  him  a  member  of  this  commu- 
nity by  making  him  a  member  of  its  own.  And  for  the  same  reason 
it  cannot  introduce  any  person,  or  description  of  persons,  who  were 
not  intended  to  be  embraced  in  this  new  political  family,  which  the 
Constitution  brought  into  existence,  but  were  intended  to  be  excluded 
from  it. 

The  question  then  arises  whether  the  provisions  of  the  Constitu- 
tion, in  relation  to  the  personal  rights  and  privileges  to  which  the 
citizen  of  a  State  should  be  entitled,  embraced  the  negro  African 
race  at  that  time  in  this  country,  or  who  might  afterwards  be  imported, 
who  had  then  or  should  afterwards  be  made  free  in  any  State,  and  to 
put  it  in  the  power  of  a  single  State  to  make  him  a  citizen  of  the 
United  States,  and  endue  him  with  the  full  rights  of  citizenship  in 
every  other  State  without  their  consent.  Does  the  Constitution  of 
the  United  States  act  upon  him  whenever  he  shall  be  made  free  under 
the  laws  of  a  State,  and  raised  there  to  the  rank  of  a  citizen,  and 
immediately  clothe  him  with  all  the  privileges  of  a  citizen  in  every 
other  State,  and  in  its  own  courts  ? 

The  court  thinks  the  affirmative  of  these  propositions  cannot  be 
maintained.    And  if  it  cannot,  the  plaintiff  in  error  could  not  be  a 
citizen  of  the  State  of  Missouri  within  the  meaning  of  the  Constitution 
20 


308  THE    DRED   SCOTT   DECISION. 

of  the  United  States,  and,  consequently,  was  not  entitled  to  sue  in  its 
courts. 

It  is  true  every  person,  and  every  class  and  description  of  persons, 
who  were  at  the  time  of  the  adoption  of  the  Constitution  recognized 
as  citizens  in  the  several  States,  became  also  citizens  of  this  new 
political  body,  but  none  other.  It  was  formed  by  them,  and  for  them 
and  their  posterity,  but  for  no  one  else.  And  the  personal  rights  and 
privileges  guaranteed  to  citizens  of  this  new  sovereignty  were  intended 
to  embrace  those  only  who  were  then  members  of  the  several  State 
communities,  or  who  should  afterwards  by  birthright  or  otherwise 
become  members,  according  to  the  provisions  of  the  Constitution  and 
the  principles  on  which  it  was  founded.  It  was  the  union  of  those 
who  were  at  that  time  members  of  distinct  and  separate  political 
communities  into  one  political  family,  whose  power,  for  certain  spec- 
ified purposes,  was  to  extend  over  the  whole  territory  of  the  United 
States.  And  it  gave  to  each  citizen  rights  and  privileges  outside  of 
his  State  which  he  did  not  before  possess,  and  placed  him  in  every 
other  State  upon  a  perfect  equality  with  its  own  citizens  as  to  rights 
of  person  and  rights  of  property.  It  made  him  a  citizen  of  the  United 
States. 

It  becomes  necessary,  therefore,  to  determine  who  were  citizens 
of  the  several  States  when  the  Constitution  was  adopted.  And  in 
order  to  do  this,  we  must  recur  to  the  governments  and  institutions 
of  the  thirteen  colonies  when  they  separated  from  Great  Britain  and 
formed  new  sovereignties,  and  took  their  places  in  the  family  of  jnde- 
pendent  nations.  We  must  inquire  who,  at  that  time,  were  recog- 
nized as  the  people  or  citizens  of  a  State,  whose  rights  and  liberties 
had  been  outraged  by  the  English  Government,  and  who  declared 
their  independence  and  assumed  the  powers  of  government  to  defend 
their  rights  by  force  of  arms. 

In  the  opinion  of  the  court,  the  legislation  and  histories  of  the 
times,  and  the  language  used  in  the  Declaration  of  Independence, 
show  that  neither  the  class  of  persons  who  had  been  imported  as 
slaves,  nor  their  descendants,  whether  they  had  become  free  or  not, 
were  then  acknowledged  as  a  part  of  the  people,  nor  intended  to  be 
included  in  the  general  words  used  in  that  memorable  instrument. 

It  is  difficult  at  this  day  to  realize  the  state  of  public  opinion  in 
relation  to  that  unfortunate  race  which  prevailed  in  the  civilized  and 
enlightened  portions  of  the  world  at  the  time  of  the  Declaration  of 
Independence,  and  when  the  Constitution  of  the  United  States  was 


THE    DRED    SCOTT    DECISION.  309 

framed  and  adopted.  But  the  public  history  of  every  European  nation 
displays  it  in  a  manner  too  plain  to  be  mistaken. 

They  had  for  more  than  a  century  before  been  regarded  as  beings  of 
an  inferior  order,  and  altogether  unfit  to  associate  with  the  white  race, 
either  in  social  or  political  relations,  and  so  far  inferior  that  they  had 
no  rights  which  the  white  man  was  bound  to  respect,  and  that  the 
negro  might  justly  and  lawfully  be  reduced  to  slavery  for  his  benefit. 
He  was  bought  and  sold,  and  treated  as  an  ordinary  article  of  mer- 
chandise and  traffic  whenever  a  profit  could  be  made  by  it.  This 
opinion  was  at  that  time  fixed  and  universal  in  the  civilized  portion 
of  the  white  race.  It  was  regarded  as  an  axiom  in  morals  as  well  as 
in  politics,  which  no  one  thought  of  disputing,  or  supposed  to  be 
open  to  dispute,  and  men  in  every  grade  and  position  in  society  daily 
and  habitually  acted  upon  it  in  their  private  pursuits,  as  well  as  in 
matters  of  public  concern,  without  doubting  for  a  moment  the  cor- 
rectness of  this  opinion. 

And  in  no  nation  was  this  opinion  more  firmly  fixed  or  more  uni- 
formly acted  upon  than  by  the  English  Government  and  English 
people.  They  not  only  seized  them  on  the  coast  of  Africa,  and  sold 
them  .or  held  them  in  slavery  for  their  own  use,  but  they  took  them 
as  ordinary  articles  of  merchandise  to  every  country  where  they  could 
make  a  profit  on  them,  and  were  far  more  extensively  engaged  in 
this  commerce  than  any  other  nation  in  the  world. 

The  opinion  thus  entertained  and  acted  upon  in  England  was 
naturally  impressed  upon  the  colonies  they  founded  on  this  side  of  the 
Atlantic.  And,  accordingly,  a  negro  of  the  African  race  was  regarded 
by  them  as  an  article  of  property,  and  held  and  bought  and  sold  as 
such  in  every  one  of  the  thirteen  colonies  which  united  in  the  Dec- 
laration of.  Independence,  and  afterwards  formed  the  Constitution -of 
the  United  States.  The  slaves  were  more  or  less  numerous  in  the 
different  colonies,  as  slave  labor  was  found  more  or  less  profitable. 
But  no  one  seems  to  have  doubted  the  correctness  of  the  prevailing 
opinion  of  the  time. 

The  legislation  of  the  different  colonies  furnishes  positive  and  indis- 
putable proof  of  this  fact. 

It  would  be  tedious,  in  this  opinion,  to  enumerate  the  various  laws 
they  passed  upori  this  subject.  It  will  be  sufficient,  as  a  sample  of 
the  legislation  which  then  generally  prevailed  throughout  the  British 
colonies,  to  give  the  laws  of  two  of  them,  one  being  still  a  large  slave- 
holding  State,  and  the  other  the  first  State  in  which  slavery  ceased  to 
exist. 


310  THE    DRED    SCOTT    DECISION. 

The  province  of  Maryland,  in  1717  (ch.  13,  s.  5),  passed  a  law 
declaring  "that  if  any  free  negro  or  mulatto  intermarry  with  any 
white  woman,  or  if  any  white  man  shall  intermarry  with  any  negro  or 
mulatto  woman,  such  negro  or  mulatto  shall  become  a  slave  during 
life,  excepting  mulattoes  born  of  white  women,  who,  for  such  inter- 
marriage, shall  only  become  servants  for  seven  years,  to  be  disposed 
of  as  the  justices  of  the  county  court  where  such  marriage  so  hap- 
pens shall  think  fit,  to  be  applied  by  them  towards  the  support  of  a 
public  school  within  the  said  county.  And  any  white  man  or  white 
woman  who  shall  intermarry  as  aforesaid  with  any  negro  or  mulatto, 
such  white  man  or  white  woman  shall  become  servants  during  the 
term  of  seven  years,  and  shall  be  disposed  of  by  the  justices  as  afore- 
said, and  be  applied  to  the  uses  aforesaid." 

The  other  colonial  law  to  which  we  refer  was  passed  by  Massa- 
chusetts in  1705  (chap.  6).  It  is  entitled  "An  act  for  the  better  pre- 
venting of  a  spurious  and  mixed  issue,"  etc.,  and  it  provides  that 
' '  if  any  negro  or  mulatto  shall  presume  to  smite  or  strike  any  person 
of  the  English  or  other  Christian  nation,  such  negro  or  mulatto  shall 
be  severely  whipped,  at  the  discretion  of  the  justices  before  whom  the 
offender  shall  be  convicted." 

And  "that  none  of  her  Majesty's  English  or  Scottish  subjects,  nor 
of  any  other  Christian  nation,  within  this  province,  shall  contract 
matrimony  with  any  negro  or  mulatto;  nor  shall  any  person  duly 
authorized  to  solemnize  marriage,  presume  to  join  any  such  in  mar- 
riage, on  pain  of  forfeiting  the  sum  of  fifty  pounds,  one  moiety  thereof 
to  her  Majesty,  for  and  towards  the  support  of  the  government  within 
this  province,  and  the  other  moiety  to  him  or  them  that  shall  inform 
and  sue  for  the  same  in  any  of  her  Majesty's  courts  of  record  within 
the  province,  by  bill,  plaint,  or  information." 

We  give  both  of  these  laws  in  the  words  used  by  the  respective 
legislative  bodies,  because  the  language  in  which  they  are  framed, 
as  well  as  the  provisions  contained  in  them,  show,  too  plainly  to  be 
misunderstood,  the  degraded  condition  of  this  unhappy  race.  They 
were  still  in  force  when  the  Revolution  began,  and  are  a  faithful  index 
to  the  state  of  feeling  torvards  the  class  of  persons  of  whom  they  speak, 
and  of  the  position  they  occupied  throughout  the  thirteen  colonies,  in 
the  eyes  and  thoughts  of  the  men  who  framed  the  Declaration  of 
Independence  and  established  the  State  constitutions  and  governments. 
They  show  that  a  perpetual  and  impassable  barrier  was  intended  to 
be  erected  between  the  white  race  and  the  one  which  they  had  reduced 


THE    DRED    SCOTT    DECISION.  311 

to  slavery,  and  governed  as  subjects  with  absolute  and  despotic  power, 
and  which  they  then  looked  upon  as  so  far  below  them  in  the  scale 
of  created  beings  that  intermarriages  between  white  persons  and 
negroes  or  mulattoes  were  regarded  as  unnatural  and  immoral,  and 
punished  as  crimes,  not  only  in  the  parties,  but  in  the  persons  who 
joined  them  in  marriage.  And  no  distinction  in  this  respect  was  made 
between  the  free  negro  or  mulatto  and  the  slave,  but  this  stigma,  of 
the  deepest  degradation,  was  fixed  upon  the  whole  race. 

We  refer  to  these  historical  facts  for  the  purpose  of  showing  the 
fixed  opinions  concerning  that  race  upon  which  the  statesmen  of  that 
day  spoke  and  acted.  //  is  necessary  to  do  this,  in  order  to  determine 
whether  the  general  terms  used  in  the  Constitution  of  the  United  States, 
as  to  the  rights  of  man  and  the  rights  of  the  people,  was  intended  to 
include  them,  or  to  give  to  them  or  their  posterity  th£  benefit  of  any 
of  its  provisions. 

The  language  of  the  Declaration  of  Independence  is  equally  con- 
clusive. It  begins  by  declaring  that  ' '  when  in  the  course  of  human 
events  it  becomes  necessary  for  one  people  to  dissolve  the  political 
bands  which  have  connected  them  with  another,  and  to  assume  among 
the  powers  of  the  earth  the  separate  and  equal  station  to  which  the 
laws  of  nature  and  nature's  God  entitle  them,  a  decent  respect  for  the 
opinions  of  mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation." 

It  then  proceeds  to  say:  "We  hold  these  truths  to  be  self-evident, 
that  all  men  are  created  equal;  that  they  are  endowed  by  their  Creator 
with  certain  unalienable  rights;  that  among  them  is  life,  liberty,  and 
the  pursuit  of  happiness;  that,  to  secure  these  rights,  governments 
are  instituted,  deriving  their  just  powers  from  the  consent  of  the 
governed." 

The  general  words  above  quoted  would  seem  to  embrace  the 
whole  human  family,  and,  if  they  were  used  in  a  similar  instrument 
at  this  day,  would  be  so  understood.  But  it  is  too  clear  for  dispute 
that  the  enslaved  African  race  were  not  intended  to  be  included,  and 
formed  no  part  of  the  people  who  framed  and  adopted  this  declaration, 
for  if  the  language,  as  understood  in  that  day,  would  embrace  them, 
the  conduct  of  the  distinguished  men  who  framed  the  Declaration  of 
Independence  would  have  been  utterly  and  flagrantly  inconsistent 
with  the  principles  they  asserted;  and,  instead  of  the  sympathy  of 
mankind,  to  which  they  so  confidently  appealed,  they  would  have 
deserved  and  received  universal  rebuke  and  reprobation. 


312  THE    DRED   SCOTT   DECISION. 

Yet  the  men  who  framed  this  declaration  were  great  men,  high  in 
literary  acquirements,  high  in  their  sense  of  honor,  and  incapable  of 
asserting  principles  inconsistent  with  those  on  which  they  were  acting. 
They  perfectly  understood  the  meaning  of  the  language  they  used, 
and  how  it  would  be  understood  by  others;  and  they  knew  that  it 
would  not  in  any  part  of  the  civilized  world  be  supposed  to  embrace 
the  negro  race,  which,  by  common  consent,  had  been  excluded  from 
civilized  governments  and  the  family  of  nations,  and  doomed  to 
slavery.  They  spoke  and  acted  according  to  the  then  established 
doctrines  and  principles,  and  in  the  ordinary  language  of  the  day, 
and  no  one  misunderstood  them.  The  unhappy  black  race  were 
separated  from  the  white  by  indelible  marks,  and  laws  long  before 
established,  and  were  never  thought  of  or  spoken  of  except  as  prop- 
erty, and  when  the  claims  of  the  owner  or  the  profit  of  the  trader 
were  supposed  to  need  protection. 

This  state  of  public  opinion  had  undergone  no  change  when  the 
Constitution  was  adopted,  as  is  equally  evident  from  its  provisions  and 
language. 

The  brief  preamble  sets  forth  by  whom  it  was  formed,  for  what 
purposes,  and  for  whose  benefit  and  protection.  It  declares  that  it 
is  formed  by  the  people  of  the  United  States,  that  is  to  say,  by  those 
who  were  members  of  the  different  political  communities  in  the  sev- 
eral States,  and  its  great  object  is  declared  to  be  to  secure  the  bless- 
ings of  liberty  to  themselves  and  their  posterity.  It  speaks  in  gen- 
eral terms  of  the  people  of  the  United  States,  and  of  citizens  of  the 
several  States,  when  it  is  providing  for  the  exercise  of  the  powers 
granted  or  the  privileges  secured  to  the  citizen.  It  does  not  define 
what  description  of  persons  are  intended  to  be  included  under  these 
terms,  or  who  shall  be  regarded  as  a  citizen  and  one  of  the  people. 
It  uses  them  as  terms  so  well  understood  that  no  further  description 
or  definition  was  necessary. 

But  there  are  two  clauses  in  the  Constitution  which  point  directly 
and  specifically  to  the  negro  race  as  a  separate  class  of  persons,  and 
show  clearly  that  they  were  not  regarded  as  a  portion  of  the  people 
or  citizens  of  the  government  then  formed. 

One  of  these  clauses  reserves  to  each  of  the  thirteen  States  the 
right  to  import  slaves  until  the  year  1808,  if  it  thinks  proper.  And 
the  importation  which  it  thus  sanctions  was  unquestionably  of  per- 
sons of  the  race  of  which  we  are  speaking,  as  the  traffic  in  slaves  in 
the  United  States  had  always  been  confined  to  them.  And  by  the 


THE    DRED    SCOTT    DECISION.  313 

Other  provision  the  States  pledge  themselves  to  each  other  to  main- 
tain the  right  of  property  of  the  master,  by  delivering  up  to  him  any 
slave  who  may  have  escaped  from  his  service,  and  be  found  within 
their  respective  territories.  By  the  first  above-mentioned  clause, 
therefore,  the  right  to  purchase  and  hold  this  property  is  directly 
sanctioned  and  authorized  for  twenty  years  by  the  people  who  framed 
the  Constitution,  and  by  the  second  they  pledge  themselves  to  main- 
tain and  uphold  the  right  of  the  master  in  the  manner  specified  as 
long  as  the  government  they  then  formed  should  endure.  And  these 
two  provisions  show  conclusively  that  neither  the  description  of  per- 
sons therein  referred  to,  nor  their  descendants,  were  embraced  in 
any  of  the  other  provisions  of  the  Constitution,  for  certainly  these  two 
clauses  were  not  intended  to  confer  on  them  or  their  posterity  the 
blessings  of  liberty,  or  any  of  the  personal  rights  so  carefully  provided 
for  the  citizen. 

No  one  of  that  race  had  ever  migrated  to  the  United  States  vol- 
untarily; all  of  them  had  been  brought  here  as  articles  of  merchan- 
dise. The  number  that  had  been  emancipated  at  that  time  were  but 
few  in  comparison  with  those  held  in  slavery,  and  they  were  identified 
in  the  public  mind  with  the  race  to  which  they  belonged,  and  regarded 
as  a  part  of  the  slave  population  rather  than  the  free.  It  is  obvious 
that  they  were  not  even  in  the  minds  of  the  framers  of  the  Constitu- 
tion when  they  were  conferring  special  rights  and  privileges  upon  the 
citizens  of  a  State  in  every  other  part  of  the  Union. 

Indeed,  when  we  look  to  the  condition  of  this  race  in  the  several 
States  at  the  time,  it  is  impossible  to  believe  that  these  rights  and 
privileges  were  intended  to  be  extended  to  them. 

It  is  very  true  that  in  that  portion  of  the  Union  where  the  labor  of 
the  negro  race  was  found  to  be  unsuited  to  the  climate  and  unprof- 
itable to  the  master,  but  few  slaves  were  held  at  the  time  of  the  Dec- 
laration of  Independence,  and,  when  the  Constitution  was  adopted, 
it  had  entirely  worn  out  in  one  of  them,  and  measures  had  been  taken 
for  its  gradual  abolition  in  several  others.  But  this  change  had  not 
been  produced  by  any  change  of  opinion  in  relation  to  this  race,  but 
because  it  was  discovered  from  experience  that  slave  labor  was 
unsuited  to  the  climate  and  productions  of  these  States,  for  some  of 
the  States,  where  it  had  ceased  or  nearly  ceased  to  exist,  were  actively 
engaged  in  the  slave  trade,  procuring  cargoes  on  the  coast  of  Africa, 
and  transporting  them  for  sale  to  those  parts  of  the  Union  where  their 
labor  was  found  to  be  profitable,  and  suited  to  the  climate  and  pro- 


314  THE    DRED   SCOTT    DECISION. 

ductions.  And  this  traffic  was  openly  carried  on,  and  fortunes  accu- 
mulated by  it,  without  reproach  from  the  people  of  the  States  where 
they  resided.  And  it  can  hardly  be  supposed  that,  in  the  States  where 
it  was  then  countenanced  in  its  worst  form,  that  is,  in  the  seizure  and 
transportation,  the  people  could  have  regarded  those  who  were  eman- 
cipated as  entitled  to  equal  rights  with  themselves. 

And  we  may  here  again  refer,  in  support  of  this  proposition,  to  the 
plain  and  unequivocal  language  of  the  laws  of  the  several  States,  some 
passed  after  the  Declaration  of  Independence  and  before  the  Con- 
stitution was  adopted,  and  some  since  the  government  went  into 
operation. 

We  need  not  refer,  on  this  point,  particularly  to  the  laws  of  the 
present  slave-holding  States.  Their  statute  books  are  full  of  pro- 
visions in  relation  to  this  class  in  the  same  spirit  with  the  Maryland 
law,  which  we  have  before  quoted.  They  have  continued  to  treat 
them  as  an  inferior  class,  and  to  subject  them  to  strict  police  regu- 
lations, drawing  a  broad  line  of  distinction  between  the  citizen  and 
the  slave  races,  and  legislating  in  relation  to  them  upon  the  same 
principle  which  prevailed  at  the  time  of  the  Declaration  of  Inde- 
pendence. As  relates  to  these  States,  it  is  too  plain  for  argument 
that  they  have  never  been  regarded  as  a  part  of  the  people  or  citizens 
of  the  State,  nor  supposed  to  possess  any  political  rights  which  the 
dominant  race  might  not  withhold  or  grant  at  their  pleasure.  And 
as  long  ago  as  1822,  the  Court  of  Appeals  of  Kentucky  decided  that 
free  negroes  and  mulattoes  were  not  citizens  within  the  meaning  of 
the  Constitution  of  the  United  States,  and  the  correctness  of  this 
decision  is  recognized  and  the  same  doctrine  affirmed  in  i  Meigs' 
Tenn.  Reports  331. 

And  if  we  turn  to  the  legislation  of  the  States  where  slavery  had 
worn  out,  or  measures  taken  for  its  speedy  abolition,  we  shall  find 
the  same  opinions  and  principles  equally  fixed  and  equally  acted  upon. 

Thus,  Massachusetts,  in  1786,  passed  a  law  similar  to  the  colonial 
one  of  which  we  have  spoken.  The  law  of  1786,  like  the  law  of  1705, 
forbids  the  marriage  of  any  white  person  with  any  negro,  Indian,  or 
mulatto,  and  inflicts  a  penalty  of  fifty  pounds  upon  anyone  who  shall 
join  them  in  marriage,  and  declares  all  such  marriages  absolutely 
null  and  void,  and  degrades  thus  the  unhappy  issue  of  the  marriage 
by  fixing  upon  it  the  stain  of  bastardy.  And  this  mark  of  degradation 
was  renewed,  and  again  impressed  upon  the  race,  in  the  careful  and 
deliberate  preparation  of  their  revised  code,  published  in  1836.  This 


THE    DRED   SCOTT    DECISION.  315 

Code  forbids  any  person  from  joining  in  marriage  any  white  person 
with  any  Indian,  negro,  or  mulatto,  and  subjects  the  party  who  shall 
offend  in  this  respect  to  imprisonment,  not  exceeding  six  months,  in 
the  common  jail,  or  to  hard  labor,  and  to  a  fine  of  not  less  than  fifty 
nor  more  than  two  hundred  dollars;  and,  like  the  law  of  1786,  it 
declares  the  marriage  to  be  absolutely  null  and  void.  It  will  be  seen 
that  the  punishment  is  increased  by  the  code  upon  the  person  who 
shall  marry  them,  by  adding  imprisonment  to  a  pecuniary  penalty. 

So,  too,  in  Connecticut.  We  refer  more  particularly  to  the  legis- 
lation of  this  State,  because  it  was  not  only  among  the  first  to  put  an 
end  to  slavery  within  its  own  territory,  but  was  the  first  to  fix  a  mark 
of  reprobation  upon  the  African  slave  trade.  The  law  last  mentioned 
was  passed  in  October,  1788,  about  nine  months  after  the  State  had 
ratified  and  adopted  the  present  Constitution  of  the  United  States, 
and  by  that  law  it  prohibited  its  own  citizens,  under  severe  penalties, 
from  engaging  in  the  trade,  and  declared  all  policies  of  insurance  on 
the  vessel  or  cargo  made  in  the  State  to  be  null  and  void.  But,  up 
to  the  time  of  the  adoption  of  the  Constitution,  there  is  nothing  in  the 
legislation  of  the  State  indicating  any  change  of  opinion  as  to  the 
relative  rights  and  position  of  the  white  and  black  races  in  this  coun- 
try, or  indicating  that  it  meant  to  place  the  latter,  when  free,  upon  a 
level  with  its  citizens,  and  certainly  nothing  which  would  have  led 
the  slave-holding  States  to  suppose  that  Connecticut  designed  to  claim 
for  them,  under  the  new  Constitution,  the  equal  rights  and  privileges 
and  rank  of  citizens  in  every  other  State. 

The  first  step  taken  by  Connecticut  upon  this  subject  was  as  early 
as  1774,  when  it  passed  an  act  forbidding  the  further  importation  of 
slaves  into  the  State.  But  the  section  containing  the  prohibition  is 
introduced  by  the  following  preamble: — 

"And,  whereas,  the  increase  of  slaves  in  this  State  is  injurious  to 
the  poor,  and  inconvenient." 

This  recital  would  appear  to  have  been  carefully  introduced,  in 
order  to  prevent  any  misunderstanding  of  the  motive  which  induced 
the  Legislature  to  pass  the  law,  and  places  it  distinctly  upon  the 
interest  and  convenience  of  the  white  population,  excluding  the  infer- 
ence that  it  might  have  been  intended  in  any  degree  for  the  benefit 
of  the  other. 

And  in  the  act  of  1784,  by  which  the  issue  of  slaves  born  after  the 
time  therein  mentioned  were  to  be  free  at  a  certain  age,  the  section 
is  again  introduced  by  a  preamble  assigning  a  similar  motive  for  the 
act.  It  is  in  these  words: — 


THE    DRED    SCOTT    DECISION. 

"Whereas,  sound  policy  requires  that  the  abolition  of  slavery 
should  be  effected  as  soon  as  may  be  consistent  with  the  rights  of 
individuals,  and  the  public  safety  and  welfare" — showing  that  the 
right  of  property  in  the  master  was  to  be  protected,  and  that  the 
measure  was  one  of  policy,  and  to  prevent  the  injury  and  inconven- 
ience to  the  whites  of  a  slave  population  in  the  State. 

And  still  further  pursuing  its  legislation,  we  find  that  in  the  same 
statute,  passed  in  1774,  which  prohibited  the  further  importation  of 
slaves  into  the  State,  there  is  also  a  provision  by  which  any  negro, 
Indian,  or  mulatto  servant,  who  was  found  wandering  out  of  the  town 
or  place  to  which  he  belonged  without  a  written  pass  such  as  is 
therein  described,  was  made  liable  to  be  seized  by  anyone,  and  taken 
before  the  next  authority,  to  be  examined  and  delivered  up  to  his 
master,  who  was  required  to  pay  the  charge  which  had  accrued 
thereby.  And  a  subsequent  section  of  the  same  law  provides  that,  if 
any  free  negro  shall  travel  without  such  pass,  and  shall  be  stopped, 
seized,  or  taken  up,  he  shall  pay  all  charges  arising  thereby.  And 
this  law  was  in  full  operation  when  the  Constitution  of  the  United 
States  was  adopted,  and  was  not  repealed  till  1797,  so  that  up  to  that 
time  free  negroes  and  mulattoes  were  associated  with  servants  and 
slaves  in  the  police  regulations  established  by  the  laws,  of  the  State. 

And  again,  in  1833,  Connecticut  passed  another  law,  which  made 
it  penal  to  set  up  or  establish  any  school  in  that  State  for  the  instruc- 
tion of  persons  of  the  African  race  not  inhabitants  of  the  State,  or  to 
instruct  or  teach  in  any  such  school  or  institution,  or  board  or  harbor 
for  that  purpose,  any  such  person,  without  the  previous  consent  in 
writing  of  the  civil  authority  of  the  town  in  which  such  school  or  insti- 
tution might  be. 

And  it  appears  by  the  case  of  Crandall  vs.  the  State,  reported  in 
10  Conn.  Rep.  340,  that  upon  an  information  filed  against  Prudence 
Crandall  for  a  violation  of  this  law,  one  of  the  points  raised  in  the 
defense  was  that  the  law  was  a  violation  of  the  Constitution  of  the 
United  States,  and  that  the  persons  instructed,  although  of  the  African 
race,  were  citizens  of  other  States,  and  therefore  entitled  to  the  rights 
and  privileges  of  citizens  in  the  State  of  Connecticut.  But  Chief 
Justice  Dagget,  before  whom  the  case  was  tried,  held  that  persons  of 
that  description  were  not  citizens  of  a  State  within  the  meaning  of  the 
word  "citizen"  in  the  Constitution  of  the  United  States,  and  were  not, 
therefore,  entitled  to  the  privileges  and  immunities  of  citizens  in  other 
States. 


THE    DRED    SCOTT    DECISION.  317 

The  case  was  carried  up  to  the  Supreme  Court  of  Errors  of  the 
State,  and  the  question  ful)y  argued  there,  but  the  case  went  off  upon 
anotrer  point,  and  no  opinion  was  expressed  on  this  question. 

We  have  made  this  particular  examination  into  the  legislative 
and  judicial  action  of  Connecticut  because,  from  the  early  hostility  it 
displayed  to  the  slave  trade  on  the  coast  of  Africa,  we  may  expect  to 
find  the  laws  of  that  State  as  lenient  and  favorable  to  the  subject  race 
as  those  of  any  other  State  in  the  Union;  and  if  we  find  that,  at  the 
time  the  Constitution  was  adopted,  they  were  not  even  there  raised 
to  the  rank  of  citizens,  but  were  still  held  and  treated  as  property, 
and  the  laws  relating  to  them  passed  with  reference  altogether  to  the 
interest  and  convenience  of  the  white  race,  we  shall  hardly  find  them 
elevated  to  a  higher  rank  anywhere  else. 

A  brief  notice  of  the  laws  of  two  other  States,  and  we  shall  pass  on 
to  other  considerations. 

By  the  laws  of  New  Hampshire,  collected  and  finally  passed  in 
1815,  no  one  was  permitted  to  be  enrolled  in  the  militia  of  the  State 
but  free  white  citizens,  and  the  same  provision  is  found  in  a  subse- 
quent collection  of  the  laws,  made  in  1855.  Nothing  could  more 
strongly  mark  the  entire  repudiation  of  the  African  race.  The  alien 
is  excluded  because,  being  born  in  a  foreign  country,  he  cannot  be  a 
member  of  the  community  until  he  is  naturalized.  But  why  are  the 
African  race  born  in  the  State  not  permitted  to  share  in  one  of  the 
highest  duties  of  the  citizen?  The  answer  is  obvious, — he  is  not,  by 
the  institutions  and  laws  of  the  State,  numbered  among  its  people. 
He  forms  no  part  of  the  sovereignty  of  the  State,  and  is  not,  there- 
fore, called  on  to  uphold  and  defend  it. 

Again,  in  1822,  Rhode  Island,  in  its  revised  code,  passed  a  law 
forbidding  persons  who  were  authorized  to  join  persons  in  marriage 
from  joining  in  marriage  any  white  person  with  any  negro,  Indian,  or 
mulatto,  under  the  penalty  of  two  hundred  dollars,  and  declaring  all 
such  marriages  absolutely  null  and  void,  and  the  same  law  was  again 
re  Enacted  in  its  revised  code  of  1844;  so  that,  down  to  the  last- 
mentioned  period,  the  strongest  mark  of  inferiority  and  degradation 
was  fastened  upon  the  African  race  in  that  State. 

II  would  be  impossible  to  enumerate  and  compress  in  the  spaqe 
usually  allotted  to  an  opinion  of  a  court  the  various  laws  marking  the 
condition  of  this  race  which  were  passed  from  lime  to  time  after  the 
Revolution,  and  before  and  since  the  adoption  of  the  Constitution  of 
the  United  States.  In  addition  to  those  already  referred  to,  it  is  suf- 


THE    DRED   SCOTT    DECISION. 

ficient  to  say  that  Chancellor  Kent,  whose  accuracy  and  research  no 
one  will  question ,  states  in  the  sixth  edition  of  his  Commentaries  (pub- 
lished in  1848,  2  vol.  258,  note  b)  that  in  no  part  of  the  country  except 
Maine  did  the  African  race,  in  point  of  fact,  participate  equally  with 
the  whites  in  the  exercise  of  civil  and  political  rights. 

The  legislation  of  the  States  therefore  shows,  in  a  manner  not  to 
be  mistaken,  the  inferior  and  subject  condition  of  that  race  at  the 
time  the  Constitution  was  adopted,  and  long  afterwards,  throughout 
the  thirteen  States  by  which  that  instrument  was  framed;  and  it  is 
hardly  consistent  with  the  respect  due  to  these  States  to  suppose  that 
they  regarded  at  that  time,  as  fellow-citizens  and  members  of  the 
sovereignty,  a  class  of  beings  whom  they  had  thus  stigmatized;  whom, 
as  we  are  bound,  out  of  respect  to  the  State  sovereignties,  to  assume 
they  had  deemed  it  just  and  necessary  thus  to  stigmatize,  and  upon 
whom  they  had  impressed  such  deep  and  enduring  marks  of  infe- 
riority and  degradation;  or  that  when  they  met  in  convention  to 
form  the  Constitution,  they  looked  upon  them  as  a  portion  of  their 
constituents,  or  designed  to  include  them  in  the  provisions  so  care- 
fully inserted  for  the  security  and  protection  of  the  liberties  and  rights 
of  their  citizens.  It  cannot  be  supposed  that  they  intended  to  secure 
to  them  rights  and  privileges  and  rank  in  the  new  political  body 
throughout  the  Union,  which  every  one  of  them  denied  within  the 
limits  of  its  own  dominion.  More  especially,  it  cannot  be  believed  that 
the  large  slave-holding  States  regarded  them  as  included  in  the  word 
"citizens,''  or  would  have  consented  to  a  Constitution  which  might 
compel  them  to  receive  them  in  that  character  from  another  State; 
for,  if  they  were  so  received,  and  entitled  to  the  privileges  and  immu- 
nities of  citizens,  it  would  exempt  them  from  the  operation  of  the 
special  laws  and  from  the  police  regulations  which  they  considered 
to  be  necessary  for  their  own  safety.  It  would  give  to  persons  of  the 
negro  race,  who  were  recognized  as  citizens  in  any  one  State  of  the 
Union,  the  right  to  enter  every  other  State  whenever  they  pleased, 
singly  or  in  companies,  without  pass  or  passport,  and  without  obstruc- 
tion, to  sojourn  there  as  long  as  they  pleased,  to  go  where  they  pleased 
at  every  hour  of  the  day  or  night  without  molestation,  unless  they 
committed  some  violation  of  law  for  which  a  white  man  would  be 
punished;  and  it  would  give  them  the  full  liberty  of  speech  in  public 
and  in  private  upon  all  subjects  upon  which  its  own  citizens  might 
speak;  to  hold  public  meetings  upon  political  affairs,  and  to  keep  and 
carry  arms  wherever  they  went.  And  all  of  this  would  be  done  in 


THE    DRED    SCOTT    DECISION.  319 

the  face  of  the  subject  race  of  the  same  color,  both  free  and  slaves> 
and  inevitably  producing  discontent  and  insubordination  among  them, 
and  endangering  the  peace  and  safety  of  the  State. 

It  is  impossible,  it  would  seem,  to  believe  that  the  great  men  of 
the  slave-holding  States,  who  took  so  large  a  share  in  framing  the 
Constitution  of  the  United  States,  and  exercised  so  much  influence  in 
procuring  its  adoption,  could  have  been  so  forgetful  or  regardless  of 
their  own  safety  and  the  safety  of  those  who  trusted  and  confided  in 
them. 

Besides,  this  want  of  foresight  and  care  would  have  been  utterly 
inconsistent  with  the  caution  displayed  in  providing  for  the  admission 
of  new  members  into  this  political  family,  for,  when  they  gave  to  the 
citizens  of  each  State  the  privileges  and  immunities  of  citizens  in  the 
several  States,  they  at  the  same  time  took  from  the  several  States  the 
power  of  naturalization,  and  confined  that  power  exclusively  to  the 
federal  government.  No  State  was  willing  to  permit  another  State 
to  determine  who  should  or  should  not  be  admitted  as  one  of  its  citi- 
zens, and  entitled  to  demand  equal  rights  and  privileges  with  their 
own  people,  within  their  own  territories.  The  right  of  naturalization 
was,  therefore,  with  one  accord  surrendered  by  the  States,  and 
confided  to  the  federal  government.  And  this  power  granted  to 
Congress  to  establish  a  uniform  rule  of  naturalization  is,  by  the  well- 
understood  meaning  of  the  word,  confined  to  persons  born  in  a  for- 
eign country,  under  a  foreign  government.  It  is  not  a  power  to  raise 
to  the  rank  of  a  citizen  anyone  born  in  the  United  States  who,  from 
birth  or  parentage,  by  the  laws  of  the  country,  belongs  to  an  inferior 
and  subordinate  class.  And  when  we  find  the  States  guarding  them- 
selves from  the  indiscreet  or  improper  admission  by  other  States  of 
emigrants  from  other  countries,  by  giving  the  power  exclusively  to 
Congress,  we  cannot  fail  to  see  that  they  could  never  have  left  with 
the  States  a  much  more  important  power,  that  is,  the  power  of  trans- 
forming into  citizens  a  numerous  class  of  persons  who  in  that  char- 
acter would  be  much  more  dangerous  to  the  peace  and  safety  of  a 
large  portion  of  the  Union  than  the  few  foreigners  one  of  the  States 
might  improperly  naturalize.  The  Constitution,  upon  its  adoption, 
obviously  took  from  the  States  all  power  by  any  subsequent  legis- 
lation to  introduce  as  a  citizen  into  the  political  family  of  the  United 
States  anyone,  no  matter  where  he  was  born,  or  what  might  be  his 
character  or  condition,  and  it  gave  to  Congress  the  power  to  confer 
this  character  upon  those  only  who  were  born  outside  of  the  domin- 


320  THE    DRED    SCOTT    DECISION. 

ions  of  the  United  States.  And  no  law  of  a  State,  therefore,  passed 
since  the  Constitution  was  adopted,  can  give  any  right  of  citizenship 
outside  of  its  own  territory. 

A  clause  similar  to  the  one  in  the  Constitution,  in  relation  to  the 
rights  and  immunities  of  citizens  of  one  State  in  the  other  States,  was 
contained  in  the  Articles  of  Confederation.  But  there  is  a  difference 
of  language,  which  is  worthy  of  note.  The  provision  in  the  Articles 
of  Confederation  was  "that  ihefree  inhabitants  of  each  of  the  States, 
paupers,  vagabonds,  and  fugitives  from  justice  excepted,  should  be 
entitled  to  all  the  privileges  and  immunities  of  free  citizens  in  the 
several  States." 

It  will  be  observed  that,  under  this  confederation,  each  State  had 
the  right  to  decide  for  itself,  and  in""its  own  tribunals,  whom  it  would 
acknowledge  as  a  free  inhabitant  of  another  State.  The  term  tlfree 
inhabitant,'"  in  the  generality  of  its  terms,  would  certainly  include  one 
of  the  African  race  who  had  been  manumitted.  But  no  example,  we 
think,  can  be  found  of  his  admission  to  all  the  privileges  of  citizenship 
in  any  State  of  the  Union  after  these  articles  were  formed,  and  while 
they  continued  in  force.  And,  notwithstanding  the  generality  of  the 
words  "free  inhabitants,"  it  is  very  clear  that,  according  to  their 
accepted  meaning  in  that  day,  they  did  not  include  the  African  race, 
whether  free  or  not,  for  the  fifth  section  of  the  ninth  article  provides 
that  Congress  should  have  the  power  "to  agree  upon  the  number  of 
land  forces  to  be  raised,  and  to  make  requisitions  from  each  State 
for  its  quota  in  proportion  to  the  number  of  white  inhabitants  in  such 
State,  which  requisition  should  be  binding." 

Words  could  hardly  have  been  used  which  more  strongly  mark 
the  line  of  distinction  between  the  citizen  and  the  subject,  the  free 
and  the  subjugated  races.  The  latter  were  not  even  counted  when 
the  inhabitants  of  a  State  were  to  be  embodied  in  proportion  to  its 
numbers  for  the  general  defense.  And  it  cannot  for  a  moment  be 
supposed  that  a  class  of  persons  thus  separated  and  rejected  from 
those  who  formed  the  sovereignty  of  the  States  were  yet  intended  to 
be  included  under  the  words  "free  inhabitants,"  in  the  preceding 
article,  to  whom  privileges- and  immunities  were  so  carefully  secured 
in  every  State. 

But,  although  this  clause  of  the  Articles  of  Confederation  is  the 
same  in  principle  with  that  inserted  in  the  Constitution,  yet  the  compre- 
hensive word  "inhabitant"  which  might  be  construed  to  include  an 
emancipated  slave,  is  omitted,  and  the  privilege  is  confined  to  citizens 


THE    DRED    SCOTT    DECISION.  321 

of  the  State.  And  this  alteration  in  words  would  hardly  have  been 
made  unless  a  different  meaning  was  intended  to  be  conveyed,  or  a 
possible  doubt  removed.  The  just  and  fair  inference  is  that,  as  this 
privilege  was  about  to  be  placed  under  the  protection  of  the  general 
government,  and  the  words  expounded  by  its  tribunals,  and  all  power 
in  relation  to  it  taken  from  the  State  and  its  courts,  it  was  deemed 
prudent  to  describe  with  precision  and  caution  the  persons  to  whom 
this  high  privilege  was  given,  and  the  word  "citizen**  was  on  that  ac- 
count substituted  for  the  words  "free  inhabitant."  The  word  "citizen" 
excluded,  and  no  doubt  intended  to  exclude,  foreigners  who  had  not 
become  citizens  of  some  one  of  the  States  when  the  Constitution  was 
adopted,  and  also  every  description  of  persons  who  were  not  fully 
recognized  as  citizens  in  the  several  States.  This,  upon  any  fair  con- 
struction of  the  instruments  to  which  we  have  referred,  was  evidently 
the  object  and  purpose  of  this  change  of  words. 

To  all  this  mass  of  proof  we  have  still  to  add  that  Congress  has 
repeatedly  legislated  upon  the  same  construction  of  the  Constitution 
that  we  have  given.  Three  laws,  two  of  which  were  passed  almost 
immediately  after  the  government  went  into  operation,  will  be  abun- 
dantly sufficient  to  show  this.  The  first  two  are  particularly  worthy 
of  notice,  because  many  of  the  men  who  assisted  in  framing  the  Con- 
stitution, and  took  an  active  part  in  procuring  its  adoption,  were  then 
in  the  halls  of  legislation,  and  certainly  understood  what  they  meant 
when  they  used  the  words  "people  of  the  United  States"  and  "citi- 
zen "  in  that  well-considered  instrument. 

The  first  of  these  acts  is  the  naturalization  law,  which  was  passed 
at  the  second  session  of  the  first  Congress,  March  26,  1790,  and 
confines  the  right  of  becoming  citizens  "to  aliens  being  free  white 
persons" 

Now,  the  Constitution  does  not  limit  the  power  of  Congress  in 
this  respect  to  white  persons.  And  they  may,  if  they  think  proper, 
authorize  the  naturalization  of  anyone,  of  any  color,  who  was  born 
under  allegiance  to  another  government.  But  the  language  of  the 
law  above  quoted  shows  that  citizenship  at  that  time  was  perfectly 
understood  to  be  confined  to  the  white  race,  and  that  they  alone 
constituted  the  sovereignty  in  the  government. 

Congress  might,  as  we  before  said,  have  authorized  the  naturali- 
zation of  Indians,  because  they  were  aliens  and  foreigners;  but,  in 
their  then  untutored  and  savage  state,  no  one  would  have  thought 
of  admitting  them  as  citizens  in  a  civilized  community.  And,  more- 


322  THE    DRED    SCOTT    DECISION. 

over,  the  atrocities  they  had  but  recently  committed,  when  they  were 
the  allies  of  Great  Britain  in  the.  Revolutionary  War,  were  yet  fresh 
in  the  recollection  of  the  people  of  the  United  States,  and  they  were 
even  then  guarding  themselves  against  the  threatened  renewal  of 
Indian  hostilities.  No  one  supposed  then  that  any  Indian  would  ask 
for,  or  was  capable  of  enjoying,  the  privileges  of  an  American  citizen, 
and  the  word  "  white  "  was  not  used  with  any  particular  reference  to 
them.  Neither  was  it  used  with  any  reference  to  the  African  race 
imported  into  or  born  in  this  country,  because  Congress  had  no  power 
to  naturalize  them,  and,  therefore,  there  was  no  necessity  for  using 
particular  words  to  exclude  them. 

It  would  seem  to  have  been  used  merely  because  it  followed  out 
the  line  of  division  which  the  Constitution  has  drawn  between  the 
citizen  race  who  formed  and  held  the  government,  and  the  African 
race,  which  they  held  in  subjection  and  slavery,  and  governed  at  their 
own  pleasure. 

Another  of  the  early  laws  of  which  we  have  spoken  is  the  first 
militia  law,  which  was  passed  in  1792,  at  the  first  session  of  the  second 
Congress.  The  language  of  this  law  is  equally  plain  and  significant 
with  the  one  just  mentioned.  It  directs  that  every  "free,  able-bodied 
white  male  citizen"  shall  be  enrolled  in  the  militia.  The  word 
"white  "  is  evidently  used  to  exclude  the  African  race,  and  the  word 
"citizen"  to  exclude  unnaturalized  foreigners,  the  latter  forming  no 
part  of  the  sovereignty,  owing  it  no  allegiance,  and,  therefore,  under 
no  obligation  to  defend  it.  The  African  race,  however,  born  in  the 
country  did  owe  allegiance  to  the  government  whether  they  were 
slave  or  free;  but  it  is  repudiated  and  rejected  from  the  duties  and 
obligations  of  citizenship  in  marked  language. 

The  third  act  to  which  we  have  alluded  is  even  still  more  decisive. 
It  was  passed  as  late  as  1813  (2  Stat.  809),  and  it  provides  "that, 
from  and  after  the  termination  of  the  war  in  which  the  United  States 
are  now  engaged  with  Great  Britain,  it  shall  not  be  lawful  to  employ 
on  board  of  any  public  or  private  vessels  of  the  United  States  any 
person  or  persons  except  citizens  of  the  United  States,  or  persons  of 
color,  natives  of  the  United  States. 

Here  the  line  of  distinction  is  drawn  in  express  words.  Persons 
of  color,  in  the  judgment  of  Congress,  were  not  included  in  the  word 
"citizens,"  and  they  are  described  as  another  and  different  class  of 
persons,  and  authorized  to  be  employed  if  born  in  the  United  States. 

And  even  as  late  as  1820  (chap.  104,  sec.  8),  in  the  charter  to  the 


THE    DRED    SCOTT    DECISION.  323 

city  of  Washington  the  corporation  is  authorized  "to  restrain  and 
prohibit  the  nightly  and  other  disorderly  meetings  of  slaves,  free 
negroes,  and  mulattoes,"  thus  associating  them  together  in  its  legis- 
lation, and,  after  prescribing  the  punishment  that  may  be  inflicted  on 
the  slaves,  proceeds  in  the  following  words:  "And  to  punish  such 
free  negroes  and  mulattoes  by  penalties,  not  exceeding  twenty  dollars 
for  any  one  offense;  and,  in  case  of  the  inability  of  any  such  free 
negro  or  mulatto  to  pay  any  such  penalty  and  cost  thereon,  to  cause 
him  or  her  to  be  confined  to  labor  for  any  time  not  exceeding  six 
calendar  months. "  And  in  a  subsequent  part  of  the  same  section  the 
act  authorizes  the  corporation  "to  prescribe  the  terms  and  conditions 
upon  which  free  negroes  and  mulattoes  may  reside  in  the  city." 

This  law,  like  the  laws  of  the  States,  shows  that  this  class  of  per- 
sons were  governed  by  special  legislation  directed  expressly  to  them, 
and  always  connected  with  provisions  for  the  government  of  slaves, 
and  not  with  those  for  the  government  of  free  white  citizens.  And 
after  such  a  uniform  course  of  legislation  as  we  have  stated,  by  the 
colonies,  by  the  States,  and  by  Congress,  running  through  a  period 
of  more  than  a  century,  it  would  seem  that  to  call  persons  thus  marked 
and  stigmatized,  "citizens"  of  the  United  States,  "fellow-citizens4," 
a  constituent  part  of  the  sovereignty,  would  be  an  abuse  of  terms,  and 
not  calculated  to  exalt  the  character  of  an  American  citizen  in  the 
eyes  of  other  nations. 

The  conduct  of  the  Executive  Department  of  the  government  has 
been  in  perfect  harmony  upon  this  subject  with  this  course  of  legis- 
lation. The  question  was  brought  officially  before  the  late  William 
Wirt,  when  he  was  the  Attorney  General  of  the  United  States,  in 
1821,  and  he  decided  that  the  words  "citizens  of  the  United  States" 
were  used  in  the  acts  of  Congress  in  the  same  sense  as  in  the  Consti- 
tution, and  that  free  persons  of  color  were  not  citizens  within  the 
meaning  of  the  Constitution  and  laws,  and  this  opinion  has  been  con- 
firmed by  that  of  the  late  Attorney  General,  Caleb  Cushing,  in  a 
recent  case,  and  acted  upon  by  the  Secretary  of  State,  who  refused  to 
grant  passports  to  them  as  "  citizens  of  the  United  States." 

But  it  is  said  that  a  person  may  be  a  citizen,  and  entitled  to  that 
character,  although  he  does  not  possess  all  the  rights  which  may 
belong  to  other  citizens;  as,  for  example,  the  right  to  vote  or  to  hold 
particular  offices,  and  that  yet,  when  he  goes  into  another  State,  he 
is  entitled  to  be  recognized  there  as  a  citizen,  although  the  State  may 
measure  his  rights  by  the  rights  which  it  allows  to  persons  of  a  like 

21 


324  THE    DRED    SCOTT    DECISION. 

character  or  class  resident  in  the  State,  and  refuse  to  him  the  full 
rights  of  citizenship.  This  argument  overlooks  the  language  of  the 
provision  in  the  Constitution  of  which  we  are  speaking. 

Undoubtedly,  a  person  may  be  a  citizen,  that  is,  a  member  of  the 
community  who  form  the  sovereignty,  although  he  exercises  no  share 
of  the  political  power,  and  is  incapacitated  from  holding  particular 
offices.  Women  and  minors,  who  form  a  part  of  the  political  family, 
cannot  vote;  and,  when  a  proper  qualification  is  required  to  vote  or 
hold  a  particular  office,  those  who  have  not  the  necessary  qualifi- 
cation cannot  vote  or  hold  the  office,  yet  they  are  citizens. 

So,  too,  a  person  may  be  entitled  to  vote  by  the  law  of  the  State 
who  is  not  a  citizen  even  of  the  State  itself.  And  in  some  of  the 
States  of  the  Union  foreigners  not  naturalized  are  allowed  to  vote. 
And  the  State  may  give  the  right  to  free  negroes  and  mulattoes,  but 
that  does  not  make  them  citizens  of  the  State,  and  still  less  of  the 
United  States.  And  the  provision  in  the  Constitution  giving  priv- 
ileges and  immunities  in  other  States  does  not  apply  to  them. 

Neither  does  it  apply  to  a  person  who,  being  the  citizen  of  a  State, 
migrates  to  another  State,  for  then  he  becomes  subject  to  the  laws  of 
the  State  in  which  he  lives,  and  he  is  no  longer  a  citizen  of  the  State 
from  which  he  removed.  And  the  State  in  which  he  resides  may 
then  unquestionably  determine  his  status  or  condition,  and  place  him 
among  the  class  of  persons  who  are  not  recognized  as  citizens,  but 
belong  to  an  inferior  and  subject  race,  and  may  deny  him  the  priv- 
ileges and  immunities  enjoyed  by  its  citizens. 

But  so  far  as  mere  rights  of  person  are  concerned,  the  provision 
in  question  is  confined  to  citizens  of  a  State  who  are  temporarily  in 
another  State  without  taking  up  their  residence  there.  It  gives  them 
no  political  rights  in  the  State  as  to  voting  or  holding  office,  or  in  any 
other  respect,  for  a  citizen  of  one  State  has  no  right  to  participate  in 
the  government  of  another.  But  if  he  ranks  as  a  citizen  in  the  State 
to  which  he  belongs,  within  the  meaning  of  the  Constitution  of  the 
United  States,  then,  whenever  he  goes  into  another  State,  the  Con- 
stitution clothes  him,  as  to  the  rights  of  person,  with  all  the  privileges 
and  immunities  which  belong  to  citizens  of  the  State.  And  if  persons 
of  the  African  race  are  citizens  of  a  State,  and  of  the  United  States, 
they  would  be  entitled  to  all  of  these  privileges  and  immunities  in 
every  State,  and  the  State  could  not  restrict  them,  for  they  would 
hold  these  privileges  and  immunities  under  the  paramount  authority 
of  the  Federal  Government,  and  its  courts  would  be  bound  to  main- 


THE   DRED   SCOTT    DECISION.  325 

tain  and  enforce  them,  the  Constitution  and  laws  of  the  State  to  the 
contrary  notwithstanding.  And  if  the  States  could  limit  or  restrict 
them,  or  place  the  party  in  an  inferior  grade,  this  clause  of  the  Con- 
stitution would  be  unmeaning,  and  could  have  no  operation,  and 
would  give  no  rights  to  the  citizen  when  in  another  State.  He  would 
have  none  but  what  the  State  itself  chose  to  allow  him.  This  is  evi- 
dently not  the  construction  or  meaning  of  the  clause  in  question!  It 
guarantees  rights  to  the  citizen,  and  the  State  cannot  withhold  them. 
And  these  rights  are  of  a  character,  and  would  lead  to  consequences, 
which  make  it  absolutely  certain  that  the  African  race  were  not 
included  under  the  name  of  citizens  of  a  State,  and  were  not  in  the 
contemplation  of  the  framers  of  the  Constitution  when  these  privileges 
arid  immunities  were  provided  for  the  protection  of  the  citizen  in 
other  States. 

The  case  of  Legrand  vs.  Darnall  (2  Peters  664)  has  been  referred 
to  for  the  purpose  of  showing  that  this  court  has  decided  that  the 
descendant  of  a  slave  may  sue  as  a  citizen  in  a  court  of  the  United 
States;  but  the  case  itself  shows  that  the  question  did  not  arise  and 
could  not  have  arisen  in  the  case. 

It  appears  from  the  report  that  Darnall  was  born  in  Maryland,  and 
was  the  son  of  a  white  man  by  one  of  his  slaves,  and  his  father  exe- 
cuted certain  instruments  to  manumit  him,  and  devised  to  him  some 
landed  property  in  the  State.  This  property  Darnall  afterwards  sold 
to  Legrand,  the  appellant,  who  gave  his  notes  for  the  purchase  money. 
But  becoming  afterwards  apprehensive  that  the  appellee  had  not  been 
emancipated  according  to  the  laws  of  Maryland,  he  refused  to  pay 
the  notes  until  he  could  be  better  satisfied  as  to  Darnall's  right  to 
convey.  Darnall,  in  the  meantime,  had  taken  up  his  residence  in 
Pennsylvania,  and  brought  suit  on  the  notes,  and  recovered  judgment 
in  the  Circuit  Court  for  the  district  of  Maryland. 

The  whole  proceeding,  as  appears  by  the  report,  was  an  amicable 
one,  Legrand  being  perfectly  willing  to  pay  the  money  if  he  could 
obtain  a  title,  and  Darnall  not  wishing  him  to  pay  unless  he  could 
make  him  a  good  one.  In  point  of  fact,  the  whole  proceeding  was 
under  the  direction  of  the  counsel,  who  argued  the  case  for  the  appellee, 
who  was  the  mutual  friend  of  the  parties,  and  confided  in  by  both  of 
them,  and  whose  only  object  was  to  have  the  rights  of  both  parties 
established  by  judicial  decision  in  the  most  speedy  and  least  expen- 
sive manner. 

Legrand,  therefore,  raised  no  objection  to  the  jurisdiction  of  the 


326  THE    DRED    SCOTT    DECISION. 

court  in  the  suit  at  law,  because  he  was  himself  anxious  to  obtain  the 
judgment  of  the  court  upon  his  title.  Consequently,  there  was  noth- 
ing in  the  record  before  the  court  to  show  that  Darnall  was  of  African 
descent,  and  the  usual  judgment  and  award  of  execution  was  entered. 
And  Legrand  thereupon  filed  his  bill  on  the  equity  side  of  the  Circuit 
Court,  stating  that  Darnall  was  born  a  slave,  and  had  not  been  legally 
emancipated,  and  could  not,  therefore,  take  the  land  devised  to  him, 
nor  make  Legrand  a  good  title,  and  praying  an  injunction  to  restrain 
Darnall  from  proceeding  to  execution  on  the  judgment,  which  was 
granted.  Darnall  answered,  averring  in  his  answer  that  he  was  a  free 
man,  and  capable  of  conveying  a  good  title.  Testimony  was  taken 
on  this  point,  and  at  the  hearing  the  Circuit  Court  was  of  opinion 
that  Darnall  was  a  free  man  and  his  title  good,  and  dissolved  the 
injunction  and  dismissed  the  bill,  and  that  decree  was  affirmed  here 
upon  the  appeal  of  Legrand. 

Now,  it  is  difficult  to  imagine  how  any  question  about  the  citizen- 
ship of  Darnall,  or  his  right  to  sue  in  that  character,  can  be  supposed 
to  have  arisen  or  been  decided  in  that  case.  The  fact  that  he  was  of 
African  descent  was  first  brought  before  the  court  upon  the  bill  in 
equity.  The  suit  at  law  had  then  passed  into  judgment  and  award  of 
execution,  and  the  Circuit  Court,  as  a  court  of  law,  had  no  longer  any 
authority  over  it.  It  was  a  valid  and  legal  judgment,  which  the  court 
that  rendered  it  had  not  the  power  to  reverse  or  set  aside.  And 
unless  it  had  jurisdiction  as  a  court  of  equity  to  restrain  him  from 
using  its  process  as  a  court  of  law,  Darnall,  if  he  thought  proper, 
would  have  been  at  liberty  to  proceed  on  his  judgment,  and  compel 
the  payment  of  the  money,  although  the  allegations  in  the  bill  were 
true,  and  he  was  incapable  of  making  a  title.  No  other  court  could 
have  enjoined  him,  for  certainly  no  State  equity  court  could  interfere 
in  that  way  with  the  judgment  of  a  Circuit  Court  of  the  United  States. 

But  the  Circuit  Court  as  a  court  of  equity  certainly  had  equity 
jurisdiction  over  its  own  judgment  as  a  court  of  law,  without  regard 
to  the  character  of  the  parties,  and  had  not  only  the  right,  but  it  was 
its  duty,  no  matter  who  were  the  parties  in  the  judgment,  to  prevent 
them  from  proceeding  to  enforce  it  by  execution,  if  the  court  was 
satisfied  that  the  money  was  not  justly  and  equitably  due.  The  ability 
of  Darnall  to  convey  did  not  depend  upon  his  citizenship,  but  upon 
his  title  to  freedom.  And  if  he  was  free,  he  could  hold  and  convey 
property,  by  the  laws  of  Maryland,  although  he  was  not  a  citizen,  but 
if  he  was  by  law  still  a  slave,  he  could  not.  It  was,  therefore,  the 


THE    DRED   SCOTT   DECISION.  327 

duty  of  the  court,  sitting  as  a  court  of  equity  in  the  latter  case,  to 
prevent  him  from  using  its  process,  as  a  court  of  common  law,  to 
compel  the  payment  of  the  purchase  money  when  it  was  evident  that 
the  purchaser  must  lose  the  land.  But  if  he  was  free,  and  could  make 
a  title,  it  was  equally  the  duty  of  the  court  not  to  suffer  Legrand  to 
keep  the  land,  and  refuse  the  payment  of  the  money,  upon  the  ground 
that  Darnall  was  incapable  of  suing  or  being  sued  as  a  citizen  in  a 
court  of  the  United  States.  The  character  or  citizenship  of  the  parties 
had  no  connection  with  the  question  of  jurisdiction,  and  the  matter  in 
dispute  had  no  relation  to  the  citizenship  of  Darnall.  Nor  is  such  a 
question  alluded  to  in  the  opinion  of  the  court. 

Besides,  we  are  by  no  means  prepared  to  say  that  there  are  not 
many  cases,  civil  as  well  as  criminal,  in  which  a  Circuit  Court  of  the 
United  States  may  exercise  jurisdiction,  although  one  of  the  African 
race  is  a  party;  that  broad  question  is  not  before  the  court.  The 
question  with  which  we  are  now  dealing  is  whether  a  person  of  the 
African  race  can  be  a  citizen  of  the  United  States,  and  become  thereby 
entitled  to  a  special  privilege,  by  virtue  of  his  title  to  that  character, 
and  which,  under  the  Constitution,  no  one  but  a  citizen  can  claim. 
It  is  manifest  that  the  case  of  Legrand  and  Darnall  has  no  bearing  on 
that  question,  and  can  have  no  application  to  the  case  now  before  the 
court. 

This  case,  however,  strikingly  illustrates  the  consequences  that 
would  follow  the  construction  of  the  Constitution  which  would  give 
the  power  contended  for  to  a  State.  It  would  in  effect  give  it  also  to 
an  individual;  for,  if  the  father  of  young  Darnall  had  manumitted  him 
in  his  lifetime,  and  sent  him  to  reside  in  a  State  which  recognized 
him  as  a  citizen,  he  might  have  visited  and  sojourned  in  Maryland 
when  he  pleased,  and  as  long  as  he  pleased,  as  a  citizen  of  the  United 
States,  and  the  State  officers  and  tribunals  would  be  compelled,  by 
the  paramount  authority  of  the  Constitution,  to  receive  him  and  treat 
him  as  one  of  its  citizens,  exempt  from  the  laws  and  police  of  the 
State  in  relation  to  a  person  of  that  description,  and  allow  him  to 
enjoy  all  the  rights  and  privileges  of  citizenship,  without  respect  to 
the  laws  of  Maryland,  although  such  laws  were  deemed  by  it  abso- 
lutely essential  to  its  own  safety. 

The  only  two  provisions  which  point  to  them  and  include  them 
treat  them  as  property,  and  make  it  the  duty  of  the  government  to 
protect  it.  No  other  power,  in  relation  to  this  race,  is  to  be  found  in 
the  Constitution,  and,  as  it  is  a  government  of  special  delegated 


THE:  DRED  SCOTT  DECISION. 

powers,  no  authority  beyond  these  two  provisions  can  be  constitu- 
tionally exercised.  The  government  of  the  United  States  had  no 
right  to  interfere  for  any  other  purpose  but  that  of  protecting  the 
rights  of  the  owner,  leaving  it  altogether  with  the  several  States  to 
deal  with  this  race,  whether  emancipated  or  not,  as  each  State  may 
think  justice,  humanity,  and  the  interests  and  safety  of  society  require. 
The  States  evidently  intended  to  reserve  this  power  exclusively  to 
themselves. 

No  one,  we  presume,  supposes  that  any  change  in  public  opinion 
or  feeling  in  relation  to  this  unfortunate  race,  in  the  civilized  nations 
of  Europe  or  in  this  country,  should  induce  the  court  to  give  to  the 
words  of  the  Constitution  a  more  liberal  construction  in  their  favor 
than  they  were  intended  to  bear  when  the  instrument  was  framed  and 
adopted.  Such  an  argument  would  be  altogether  inadmissible  in 
any  tribunal  called  on  to  interpret  it.  If  any  of  its  provisions  are 
deemed  unjust,  there  is  a  mode  prescribed  in  the  instrument  itself  by 
which  it  may  be  amended;  but,  while  it  remains  unaltered,  it  must  be 
construed  now  as  it  was  understood  at  the  time  of  its  adoption.  It  is 
not  only  the  same  in  words,  but  the  same  in  meaning,  and  delegates 
the  same  powers  to  the  government,  and  reserves  and  secures  the 
same  rights  and  privileges  to  the  citizen;  and,  as  long  as  it  continues 
to  exist  in  its  present  form,  it  speaks  not  only  in  the  same  words,  but 
with  the  same  meaning  and  intent  with  which  it  spoke  when  it  came 
from  the  hands  of  its  framers,  and  was  voted  on  and  adopted  by  the 
people  of  the  United  States.  Any  other  rule  of  construction  would 
abrogate  the  judicial  character  of  this  court,  and  make  it  the  mere 
reflex  of  the  popular  opinion  or  passion  of  the  day.  This  court  was 
not  created  by  the  Constitution  for  such  purposes.  Higher  and  graver 
trusts  have  been  confided  to  it,  and  it  must  not  falter  in  the  path  of 
duty. 

What  the  construction  was  at  that  time  we  think  can  hardly  admit 
of  doubt.  We  have  the  language  of  the  Declaration  of  Independence 
and  of  the  Articles  of  Confederation,  in  addition  to  the  plainnvords 
of  the  Constitution  itself;  we  have  the  legislation  of  the  different 
States  before,  about  the  time,  and  since  the  Constitution  was  adopted; 
we  have  the  legislation  of  Congress  from  the  time  of  its  adoption  to  a 
recent  period;  and  we  have  the  constant  and  uniform  action  of  the 
Executive  Department,  all  concurring  together,  and  leading  to  the 
same  result.  And  if  anything  in  relation  to  the  construction  of  the 
Constitution  can  be  regarded  as  settled,  it  is  that  which  we  now  give 
to  the  word  "citizen  "  and  the  word  "  people."  


THE    DRED   SCOTT    DECISION.  329 

And  upon  a  full  and  careful  consideration  of  the  subject,  the  court 
is  of  opinion  that,  upon  the  facts  stated  in  the  plea  in  abatement,  Dred 
Scott  was  not  a  citizen  of -Missouri  within  the  meaning  of  the  Con- 
stitution of  the  United  States,  and  not  entitled  as  such  to  sue  in  its 
courts,  and,  consequently,  that  the  Circuit  Court  had  no  jurisdiction 
of  the  case,  and  that  the  judgment  on  the  plea  in  abatement  is  erro- 
neous. 

We  are  aware  that  doubts  are  entertained  by  some  of  the  mem- 
bers of  the  court  whether  the  plea  in  abatement  is  legally  before  the 
court  upon  this  writ  of  error;  but,  if  that  plea  is  regarded  as  waived, 
or  out  of  the  case  upon  any  other  ground,  yet  the  question  as  to  the 
jurisdiction  of  the  Circuit  Court  is  presented  on  the  face  of  the  bill  of 
exception  itself,  taken  by  the  plaintiff  at  the  trial;  for  he  admits  that 
he  and  his  wife  were  born  slaves,  bi*t  endeavors  to  make  out  his  title 
to  freedom  and  citizenship  by  showing  that  they  were  taken  by  their 
owner  to  certain  places,  hereinafter  mentioned,  where  slavery  could 
not  by  law  exist,  and  that  they  thereby  became  free,  and  upon  their 
return  to  Missouri  became  citizens  of  that  State. 

Now,  if  the  removal  of  which  he  speaks  did  not  give  them  their 
freedom,  then  by  his  own  admission  he  is  still  a  slave;  and,  whatever 
opinions  may  be  entertained  in  favor  of  the  citizenship  of  a  free  person 
of  the  African  race,  no  one  supposes  that  a  slave  is  a  citizen  of  the 
State  or  of  the  United  States.  If,  therefore,  the  acts  done  by  his 
owner  did  not  make  them  free  persons,  he  is  still  a  slave,  and  cer- 
tainly incapable  of  suing  in  the  character  of  a  citizen. 

The  principle  of  law  is  too  well  settled  to  be  disputed  that  a  court 
can  give  no  judgment  for  either  party  where  it  has  no  jurisdiction; 
and  if,  upon  the  showing  of  Scott  himself,  it  appeared  that  he  was 
still  a  slave,  the  case  ought  to  have  been  dismissed,  and  the  judgment 
against  him  and  in  favor  of  the  defendant  for  costs  is,  like  that  on  the 
plea  in  abatement,  erroneous,  and  the  suit  ought  to  have  been  dis- 
missed by  the  Circuit  Court  for  want  of  jurisdiction  in  that  court. 

But,  before  we  proceed  to  examine  this  part  of  the  case,  it  may 
be  proper  to  notice  an  objection  taken  to  the  judicial  authority  of  this 
court  to  decide  it;  and  it  has  been  said  that,  as  this  court  has  decided 
against  the  jurisdiction  of  the  Circuit  Court  on  the  plea  in  abatement, 
it  has  no  right  to  examine  any  question  presented  by  the  exception, 
and  that  anything  it  may  say  upori  that  part  of  the  case  will  be  extra- 
judicial,  and  mere  obiter  dicta. 

This  is  a  manifest  mistake.     There  can  be  no  doubt  as  to  the 


330  THE    DRED    SCOTT    DECISION. 

jurisdiction  of  this  court  to  revise  the  judgment  of  a  Circuit  Court, 
and  to  reverse  it  for  any  error  apparent  on  the  record,  whether  it  be 
the  error  of  giving  judgment  in  a  case  over  which  it  had  no  jurisdic- 
tion, or  any  other  material  error,  and  this,  too,  whether  there  is  a 
plea  in  abatement  or  not. 

The  objection  appears  to  have  arisen  from  confounding  writs  of 
error  to  a  State  court  with  writs  of  error  to  a  Circuit  Court  of  the 
United  States.  Undoubtedly,  upon  a  writ  of  error  to  a  State  court, 
unless  the  record  shows  a  case  that  gives  jurisdiction l  the  case  must 
be  dismissed  for  want  of  jurisdiction  in  this  court.  And  if  it  is  dis- 
missed on  that  ground,  we  have  no  right  to  examine  and  decide  upon 
any  question  presented  by  the  bill  of  exceptions,  or  any  other  part  of 
the  record.  But  writs  of  error  to  a  State  court  and  to  a  Circuit  Court 
of  the  United  States  are  regulated  by  different  laws,  and  stand  upon 
entirely  different  principles.  And  in  a  writ  of  error  to  a  Circuit  Court 
of  the  United  States,  the  whole  record  is  before  this  court  for  exami- 
nation and  decision,  and,  if  the  sum  in  controversy  is  large  enough  to 
give  jurisdiction,  it  is  not  only  the  right  but  it  is  the  judicial  duty  of 
the  court  to  examine  the  whole  case  as  presented  by  the  record;  and, 
if  it  appears  upon  its  face  that  any  material  error  or  errors  have  been 
committed  by  the  court  below,  it  is  the  duty  of  this  court  to  reverse 
the  judgment,  and  remand  the  case.  And  certainly  an  error  in  pass- 
ing a  judgment  upon  the  merits  in  favor  of  either  party,  in  a  case 
which  it  was  not  authorized  to  try,  and  over  which  it  had  no  juris- 
diction, is  as  grave  an  error  as  a  court  can  commit. 

The  plea  in  abatement  is  not  a  plea  to  the  jurisdiction  of  this  court, 
but  to  the  jurisdiction  of  the  Circuit  Court.  And  it  appears  by  the 
record  before  us  that  the  Circuit  Court  committed  an  error  in  decid- 
ing that  it  had  jurisdiction  upon  the  facts  in  the  case  admitted  by  the 
pleadings.  It  is  the  duty  of  the  appellate  tribunal  to  correct  this 
error,  but  that  could  not  be  done  by  dismissing  the  case  for  want  of 
jurisdiction  here,  for  that  would  leave  the  erroneous  judgment  in  full 
force,  and  the  injured  party  without  remedy.  And  the  appellate  court, 
therefore,  exercises  the  power  for  which  alone  appellate  courts  are 
constituted,  by  reversing  the  judgment  of  the  court  below  for  this 
error.  It  exercises  its  proper  and  appropriate  jurisdiction  over  the 
judgment  and  proceedings  of  the  Circuit  Court,  as  they  appear  upon 
the  record  brought  up  by  the  writ  of  error. 

The  correction  of  one  error  in  the  court  below  does  not  deprive 
the  appellate  court  of  the  power  of  examining  further  into  the  record, 


THE    DRED    SCOTT    DECISION.  331 

and  correcting  any  other  material  errors  which  may  have  been  com- 
mitted by  the  inferior  court.  There  is  certainly  no  rule  of  law,  nor 
any  practice,  nor  any  decision  of  a  court,  which  even  questions  this 
power  in  the  appellate  tribunal.  On  the  contrary,  it  is  the  daily 
practice  of  this  court,  and  of  all  appellate  courts  where  they  reverse 
the  judgment  of  an  inferior  court  for  error,  to  correct  by  its  opinions 
whatever  errors  may  appear  on  the  record  material  to  the  case,  and 
they  have  always  held  it  to  be  their  duty  to  do  so  where  the  silence 
of  the  court  might  lead  to  misconstruction  or  future  controversy,  and 
the  point  has  been  relied  on  by  either  side,  and  argued  before  the 
court. 

In  the  case  before  us  we  have  already  decided  that  the  Circuit 
Court  erred  in  deciding  that  it  had  jurisdiction  upon  the  facts  admitted 
by  the  pleadings.  And  it  appears  that,  in  the  further  progress  of  the 
case,  it  acted  upon  the  erroneous  principle  it  had  decided  on  the 
pleadings,  and  gave  judgment  for  the  defendant  where,  upon  the  facts 
admitted  in  the  exception,  it  had  no  jurisdiction. 

We  are  at  a  loss  to  understand  upon  what  principle  of  law,  appli- 
cable to  appellate  jurisdiction,  it  can  be  supposed  that  this  court  has 
not  judicial  authority  to  correct  the  last-mentioned  error,  because 
they  had  before  corrected  the  former;  or  by  what  process  of  reason- 
ing it  can  be  made  out  that  the  error  of  an  inferior  court,  in  actually 
pronouncing  judgment  for  one  of  the  parties  in  a  case  in  which  it  had 
no  jurisdiction,  cannot  be  looked  into  or  corrected  by  this  court, 
because  we  have  decided  a  similar  question  presented  in  the  plead- 
ings. The  last  point  is  distinctly  presented  by  the  facts  contained  in 
the  plaintiff's  own  bill  of  exceptions,  which  he  himself  brings  here  by 
this  writ  of  error.  It  was  the  point  which  chiefly  occupied  the  atten- 
tion of  the  counsel  on  both  sides  in  the  argument,  and  the  judgment 
which  this  court  must  render  upon  both  errors  is  precisely  the  same. 
It  must,  in  each  of  them,  exercise  jurisdiction  over  the  judgment,  and 
reverse  it  for  the  errors  committed  by  the  court  below,  and  issue  a 
mandate  to  the  Circuit  Court  to  conform  its  judgment  to  the  opinion 
pronounced  by  this  court,  by  dismissing  the  case  for  want  of  juris- 
diction in  the  Circuit  Court.  This  is  the  constant  and  invariable 
practice  of  this  court,  where  it  reverses  a  judgment  for  want  of  juris- 
diction in  the  Circuit  Court. 

It  can  scarcely  be  necessary  to  pursue  such  a  question  further. 
The  want  of  jurisdiction  in  the  court  below  may  appear  on  the  record 
without  any  plea  in  abatement.  This  is  familiarly  the  case  where  a 


3o2  fHE    DRED   SCOTT    DECISION. 

court  of  chancery  has  exercised  jurisdiction  in  a  case  where  the  plain- 
tiff had  a  plain  and  adequate  remedy  at  law,  and  it  so  appears  by  the 
transcript  when  brought  here  by  appeal;  so  also,  where  it  appears 
that  a  court  of  admiralty  has  exercised  jurisdiction  in  a  case  belonging 
exclusively  to  a  court  of  common  law.  In  these  cases  there  is  no 
plea  in  abatement.  And  for  the  same  reason,  and  upon  the  same 
principles,  where  the  defect  of  jurisdiction  is  patent  on  the  record, 
this  court  is  bound  to  reverse  the  judgment,  although  the  defendant 
has  not  pleaded  in  abatement  to  the  jurisdiction  of  the  inferior  court. 

The  cases  of  Jackson  vs.  Ashton  and  of  Capron  vs.  Van  Noorden, 
to  which  we  have  referred  in  a  previous  part  of  this  opinion,  are 
directly  in  point.  In  the  last-mentioned  case,  Capron  brought  an 
action  against  Van  Noorden  in  a  Circuit  Court  of  the  United  States 
without  showing,  by  the  usual  averments  of  citizenship,  that  the  court 
had  jurisdiction.  There  was  no  plea  in  abatement  put  in,  and  the 
parties  went  to  trial  upon  the  merits.  The  court  gave  judgment  in 
favor  of  the  defendant  with  costs.  The  plaintiff  thereupon  brought 
his  writ  of  error,  and  this  court  reversed  the  judgment  given  in  favor 
of  the  defendant,  and  remanded  the  case,  with  directions  to  dismiss 
it,  because  it  did  not  appear  by  the  transcript  that  the  Circuit  Court 
had  jurisdiction. 

The  case  before  us  still  more  strongly  imposes  upon  this  court  the 
duty  of  examining  whether  the  court  below  has  not  committed  an 
error  in  taking  jurisdiction  and  giving  a  judgment  for  costs  in  favor 
of  the  defendant;  for  in  Capron  vs.  Van  Noorden  the  judgment  was 
reversed,  because  it  did  not  appear  that  the  parties  were  citizens  of 
different  States.  They  might  or  might  not  be.  But  in  this  case  it 
does  appear  that  the  plaintiff  was  born  a  slave;  and,  if  the  facts  upon 
which  he  relies  have  not  made  him  free,  then  it  appears  affirmatively 
on  the  record  that  he  is  not  a  citizen,  and,  consequently,  his  suit 
against  Sandford  was  not  a  suit  between  citizens  of  different  States, 
and  the  court  had  no  authority  to  pass  any  judgment  between  the 
parties.  The  suit  ought,  in  this  view  of  it,  to  have  been  dismissed 
by  the  Circuit  Court,  and  its  judgment  in  favor  of  Sandford  is  erro- 
neous, and  must  be  reversed. 

It  is  true  that  the  result  either  way,  by  dismissal  or  by  a  judgment 
for  the  defendant,  makes  very  little,  if  any,  difference  in  a  pecuniary 
or  personal  point  of  view  to  either  party.  But  the  fact  that  the  result 
would  be  very  nearly  the  same  to  the  parties  in  either  form  of  judg- 
ment, would  not  justify  this  court  in  sanctioning  an  error  in  the  judg- 


THE    DRED    SCOTT    DECISION.  333 

ment  which  is  patent  on  the  record,  and  which,  if  sanctioned,  might 
be  drawn  into  precedent,  and  lead  to  serious  mischief  and  injustice 
in  some  future  suit.  We  proceed,  therefore,  to  inquire  whether  the 
facts  relied  on  by  the  plaintiff  entitled  him  to  his  freedom. 

The  case,  as  he  himself  states  it,  on  the  record  brought  here  by 
his  writ  of  error,  is  this: — 

The  plaintiff  was  a  negro  slave,  belonging  to  Dr.  Emerson,  who 
was  a  surgeon  in  the  army  of  the  United  States.  In  the  year  1834  he 
took  the  plaintiff  from  the  State  of  Missouri  to  the  military  post  at 
Rock  Island,  in  the  State  of  Illinois,  and  held  him  there  as  a  slave 
until  the  month  of  April  or  May,  1836.  At  the  time  last  mentioned, 
said  Dr.  Emerson  removed  the  plaintiff  from  said  military  post  at 
Rock  Island  to  the  military  post  at  Fort  Snelling,  situate  on  the  west 
bank  of  the  Mississippi  River,  in  the  territory  known  as  Upper  Louis- 
iana, acquired  by  the  United  States  of  France,  and  situate  north  of 
the  latitude  of  36°  30'  north,  and  north  of  the  State  of  Missouri.  Said 
Dr.  Emerson  held  the  plaintiff  in  slavery  at  said  Fort  Snelling  from 
said  last-mentioned  date  until  the  year  1838. 

In  the  year  1835  Harriet,  who  is  named  in  the  second  count  of  the 
plaintiff's  declaration,  was  the  negro  slave  of  Major  Taliaferro,  who 
belonged  to  the  army  of  the  United  States.  In  that  year,  1835,  said 
Major  Taliaferro  took  said  Harriet  to  said  Fort  Snelling,  a  military 
post,  situated  as  hereinbefore  stated,  and  kept  her  there  as  a  slave 
until  the  year  1836,  and  then  sold  and  delivered  her  as  a  slave,  at  said 
Fort  Snelling,  unto  the  said  Dr.  Emerson  hereinbefore  named.  Said 
Dr.  Emerson  held  said  Harriet  in  slavery  at  said  Fort  Snelling  until 
the  year  1838. 

In  the  year  1836  the  plaintiff  and  Harriet  intermarried,  at  Fort 
Snelling,  with  the  consent  of  Dr.  Emerson,  who  then  claimed  to  be 
their  master  and  owner.  Eliza  and  Lizzie,  named  in  the  third  count 
of  the  plaintiff's  declaration,  are  the  fruit  of  that  marriage.  Eliza  is 
about  fourteen  years  old,  and  was  born  on  board  the  steamboat 
GJpsey,  north  of  the  north  line  of  the  State  of  Missouri,  and  upon  the 
river  Mississippi.  Lizzie  is  about  seven  years  old,  and  was  born  in 
the  State  of  Missouri,  at  the  military  post  called  Jefferson  Barracks. 

In  the  year  1838  said  Dr.  Emerson  removed  the  plaintiff  and  said 
Harriet  and  their  said  daughter  Eliza  from  said  Fort  Snelling  to  the 
State  of  Missouri,  where  they  have  ever  since  resided. 

Before  the  commencement  of  this  suit  said  Dr.  Emerson  sold  and 
conveyed  the  plaintiff,  and  Harriet,  Eliza,  and  Lizzie,  to  the  defendant, 


334  THE    DRED    SCOTT    DECISION. 

as  slaves,  and  the  defendant  has  ever  since  claimed  to  hold  them  and 
each  of  them  as  slaves. 

In  considering  this  part  of  the  controversy,  two  questions  arise: 
(i>  Was  he,  together  with  his  family,  free  in  Missouri  by  reason  of 
the  stay  in  the  territory  of  the  United  States,  hereinbefore  mentioned? 
and  (2)  if  they  were  not,  is  Scott  himself  free  by  reason  of  his  removal 
to  Rock  Island,  in  the  State  of  Illinois,  as  stated  in  the  above  ad- 
missions ? 

We  proceed  to  examine  the  first  question. 

The  act  of  Congress,  upon  which  the  plaintiff  relies,  declares  that 
slavery  and  involuntary  servitude,  except  as  a  punishment  for  crime, 
shall  be  forever  prohibited  in  all  that  part  of  the  territory  ceded  by 
France  under  the  name  of  Louisiana,  which  lies  north  of  36°  30'  north 
latitude,  and  not  included  within  the  limits  of  Missouri.  And  the 
difficulty  which  meets  us  at  the  threshold  of  this  part  of  the  inquiry 
is  whether  Congress  was  authorized  to  pass  this  law  under  any  of  the 
powers  granted  to  it  by  the  Constitution;  for,  if  the  authority  is  not 
given  by  that  instrument,  it  is  the  duty  of  this  court  to  declare  it  void 
and  inoperative,  and  incapable  of  conferring  freedom  upon  anyone 
who  is  held  as  a  slave  under  the  laws  of  any  one  of  the  States. 

The  counsel  for  the  plaintiff  has  laid  much  stress  upon  that  article 
in  the  Constitution  which  confers  on  Congress  the  power  ''to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States,"  but,  in  the  judg- 
ment of  the  court,  that  provision  has  no  bearing  on  the  present  con- 
troversy, and  the  power  there  given,  whatever  it  may  be,  is  confined, 
and  was  intended  to  be  confined,  to  the  territory  which  at  that  time 
belonged  to,  or  was  claimed  by,  the  United  States,  and  was  within 
their  boundaries  as  settled  by  the  treaty  with  Great  Britain,  and  can 
have  no  influence  upon  a  territory  afterwards  acquired  from  a  foreign 
government.  It  was  a  special  provision  for  a  known  and  particular 
territory,  and  to  meet  a  present  emergency,  and*  nothing  more. 

A  brief  summary  of  the  history  of  the  times,  as  well  as  the  careful 
and  measured  terms  in  which  the  article  is  framed,  will  show  the 
correctness  of  this  proposition. 

It  will  be  rememoered  that,  from  the  commencement  of  the  Revo- 
lutionary War,  serious  difficulties  existed  between  the  States  in  rela- 
tion to  the  disposition  of  large  and  unsettled  territories  which  were 
included  in  the  chartered  limits  of  some  of  the  States.  And  some  of 
the  other  States,  and  more  especially  Maryland,  which  had  no  unset- 


THE    DRED    SCOTT    DECISION.  335 

tied  lands,  insisted  that  as  the  unoccupied  lands,  if  wrested  from 
Great  Britain,  would  owe  their  preservation  to  the  common  purse 
and  the  common  sword,  the  money  arising  from  them  ought  to  be 
applied  in  just  proportion  among  the  several  States  to  pay  the  ex- 
penses of  the  war,  and  ought  not  to  be  appropriated  to  the  use  of  the 
State  in  whose  chartered  limits  they  might  happen  to  lie,  to  the 
exclusion  of  the  other  States,  by  whose  combined  efforts  and  com- 
mon expense  the  territory  was  defended  and  preserved  against  the 
claim  of  the  British  Government. 

These  difficulties  caused  much  uneasiness  during  the  war,  while 
the  issue  was  in  some  degree  doubtful,  and  the  future  boundaries  of 
the  United  States  yet  to  be  defined  by  treaty,  if  we  achieved  our 
independence. 

The  majority  of  the  Congress  of  the  Confederation  obviously  con- 
curred in  opinion  with  the  State  of  Maryland,  and  desired  to  obtain 
from  the  States  which  claimed  it  a  cession  of  this  territory,  in  order 
that  Congress  might  raise  money  on  this  security  to  carry  on  the  war. 
This  appears  by  the  resolution  passed  on  the  6th  of  September,  1780, 
strongly  urging  the  States  to  cede  these  lands  to  the  United  States, 
both  for  the  sake  of  peace  and  union  among  themselves,  and  to  main- 
tain the  public  credit,  and  this  was  followed  by  the  resolution  of 
October  10,  1780,  by  which  Congress  pledged  itself  that,  if  the  lands 
were  ceded,  as  recommended  by  the  resolution  above  mentioned, 
they  should  be  disposed  of  for  the  common  benefit  of  the  United 
States,  and  be  settled  and  formed  into  distinct  republican  States, 
which  should  become  members  of  the  Federal  Union,  and  have  the 
same  rights  of  sovereignty  and  freedom  and  independence  as  other 
States. 

But  these  difficulties  became  much  more  serious  after  peace  took 
place,  and  the  boundaries  of  the  United  States  were  established. 
Every  State,  at  that  time,  felt  severely  the  pressure  of  its  war  debt; 
but  in  Virginia,  and  some  other  States,  there  were  large  territories  of 
unsettled  lands,  the  sale  of  which  would  enable  them  to  discharge 
their  obligations  without  much  inconvenience,  while  other  States, 
which  had  no  such  resource,  saw  before  them  many  years  of  heavy 
and  burdensome  taxation,  and  the  latter  insisted,  for  the  reasons 
before  stated,  that  these  unsettled  lands  should  be  treated  as  the 
common  property  of  the  States,  and  the  proceeds  applied  to  their 
common  benefit. 

The  letters  from  the  statesmen  of  that  day  will  show  how  much 


336  THE    DRED    SCOTT    DECISION. 

this  controversy  occupied  their  thoughts,  and  the  dangers  that  were 
apprehended  from  it.  It  was  the  disturbing  element  of  the  time,  and 
fears  were  entertained  that  it  might  dissolve  the  Confederation  by 
which  the  States  were  then  united. 

These  fears  and  dangers  were,  however,  at  once  removed  when 
the  State  of  Virginia,  in  1784,  voluntarily  ceded  to  the  United  States 
the  immense  tract  of  country  lying  northwest  of  the  river  Ohio,  and 
which  was  within  the  acknowledged  limits  of  the  State.  The  only 
object  of  the  State,  in  making  this  cession,  was  to  put  an  end  to  the 
threatening  and  exciting  controversy,  and  to  enable  the  Congress  of 
that  time  to  dispose  of  the  lands,  and  appropriate  the  proceeds  as 
a  common  fund  for  the  common  benefit  of  the  States.  It  was  not 
ceded  because  it  was  inconvenient  to  the  State  to  hold  and  govern  it, 
nor  from  any  expectation  that  it  could  be  better  or  more  conveniently 
governed  by  the  United  States. 

The  example  of  Virginia  was  soon  afterwards  followed  by  other 
States,  and,  at  the  time  of  the  adoption  of  the  Constitution,  all  of  the 
States  similarly  situated  had  ceded  their  unappropriated  lands,  except 
North  Carolina  and  Georgia.  The  main  object  for  which  these  ces- 
sions were  desired  and  made  was  on  account  of  their  money  value, 
and  to  put  an  end  to  a  dangerous  controversy  as  to  who  was  justly 
entitled  to  the  proceeds  when  the  lands  should  be  sold.  It  is  neces- 
sary to  bring  this  part  of  the  history  of  these  cessions  thug  distinctly 
into  view,  because  it  will  enable  us  the  better  to  comprehend  the 
phraseology  of  the  article  in  the  Constitution  so  often  referred  to  in 
the  argument. 

Undoubtedly  the  powers  of  sovereignty  and  the  eminent  domain 
were  ceded  with  the  land.  This  was  essential,  in  order  to  make  it 
effectual  and  to  accomplish  its  objects.  But  it  must  be  remembered 
that,  at  that  time,  there  was  no  government  of  the  United  States  in 
existence  with  enumerated  and  limited  powers.  What  was  then 
called  the  United  States  were  thirteen  separate,  sovereign,  inde- 
pendent States,  which  had  entered  into  a  league  or  confederation  for 
their  mutual  protection  and  advantage,  and  the  Congress  of  the  United 
States  was  composed  of  the  representatives  of  these  separate  sov- 
ereignties, meeting  together,  as  equals,  to  discuss  and  decide  on 
certain  measures  which  the  States,  by  the  Articles  of  Confederation, 
had  agreed  to  submit  to  their  decision.  But  this  Confederation  had 
none  of  the  attributes  of  sovereignty  in  legislative,  executive,  or 
judicial  power.  It  was  little  more  than  a  congress  of  ambassadors. 


THE    DRED    SCOTT    DECISION.  337 

authorized  to  represent  separate  nations  in  matters  in  which  they  had 
a  common  concern. 

It  was  this  Congress  that  accepted  the  cession  from  Virginia. 
They  had  no  power  to  accept  it  under  the  Articles  of  Confederation. 
But  they"  had  an  undoubted  right,  as  independent  sovereignties,  to 
accept  any  cession  of  territory  for  their  common  benefit,  which  all  of 
them  assented  to;  and  it  is  equally  clear  that,  as  their  common  prop- 
erty, and  having  no  superior  to  control  them,  they  had  the  right  to 
exercise  absolute  dominion  over  it,  subject  only  to  the  restrictions 
which  Virginia  had  imposed  in  her  act  of  cession.  There  was,  as  we 
have  said,  no  government  of  the  United  States  then  in  existence  with 
special  enumerated  and  limited  powers.  The  territory  belonged  to 
sovereignties  who,  subject  to  the  limitations  above  mentioned,  had  a 
right  to  establish  any  form  of  government  they  pleased,  by  compact 
or  treaty  among  themselves,  and  to  regulate  rights  of  person  and 
rights  of  property  in  the  territory,  as  they  might  deem  proper.  It 
was  by  a  Congress,  representing  the  authority  of  these  several  and 
separate  sovereignties,  and  acting  under  their  authority  and  com- 
mand (but  not  from  any  authority  derived  from  the  Articles  of  Con- 
federation), that  the  instrument  usually  called  the  ordinance  of  1787 
was  adopted,  regulating  in  much  detail  the  principles  and  the  laws 
by  which  this  territory  should  be  governed;  and,  among  other  pro- 
visions, slavery  is  prohibited  in  it.  We  do  not  question  the  power 
of  the  States,  by  agreement  among  themselves,  to  pass  this  ordi- 
nance, nor  its  obligatory  force  in  the  territory,  while  the  confedera- 
tion or  league  of  the  States  in  their  separate  sovereign  character 
continued  to  exist. 

This  was  the  state  of  things  when  the  Constitution  of  the  United 
States  was  formed.  The  territory  ceded  by  Virginia  belonged  to  the 
several  confederated  States  as  common  property,  and  they  had  united 
in  establishing  in  it  a  system  of  government  and  jurisprudence,  in 
order  to  prepare  it  for  admission  as  States,  according  to  the  terms  of 
the  cession.  They  were  about  to  dissolve  this  federative  Union,  and 
to  surrender  a  portion  of  their  independent  sovereignty  to  a  new 
government,  which,  for  certain  purposes,  would  make  the  people  of 
the  several  States  one  people,  and  which  was  to  be  supreme  and 
controlling  within  its  sphere  of  action  throughout  the  United  States; 
but  this  government  was  to  be  carefully  limited  in  its  powers,  and  to 
exercise  no  authority  beyond  those  expressly  granted  by  the  Consti- 
tution, or  necessarily  to  be  implied  from  the  language  of  the  instru- 


338  THE    DRED    SCOTT    DECISION. 

ment  and  the  objects  it  was  intended  to  accomplish;  and,  as  this 
league  of  States  would,  upon  the  adoption  of  the  new  government, 
cease  to  have  any  power  over  the  territory,  and  the  ordinance  they 
had  agreed  upon  be  incapable  of  execution,  and  a  mere  nullity,  it 
was  obvious  that  some  provision  was  necessary  to  give  the  new  gov- 
ernment sufficient  power  to  enable  it  to  carry  into  effect  the  objects 
for  which  it  was  ceded,  and  the  compacts  and  agreements  which  the 
States  had  made  with  each  other  in  the  exercise  of  their  powers  of 
sovereignty.  It  was  necessary  that  the  lands  should  be  sold  to  pay 
the  war  debt;  that  a  government  and  system  of  jurisprudence  should 
be  maintained  in  it,  to  protect  the  citizens  of  the  United  States  who 
should  migrate  to  the  territory,  in  their  rights  of  person  and  of  prop- 
erty. It  was  also  necessary  that  the  new  government  about  to  be 
adopted  should  be  authorized  to  maintain  the  claim  of  the  United 
States  to  the  unappropriated  lands  in  North  Carolina  and  Georgia, 
which  had  not  then  been  ceded,  but  the  cession  of  which  was  con- 
fidently anticipated  upon  some  terms  that  would  be  arranged  between 
the  general  government  and  these  two  States.  And,  moreover,  there 
were  many  articles  of  value  besides  this  property  in  land,  such  as 
arms,  military  stores,  munitions,  and  ships  of  war,  which  were  the 
common  property  of  the  States  when  acting  in  their  independent 
characters  as  confederates,  which  neither  the  new  government  nor 
anyone  else  would  have  a  right  to  take  possession  of  or  control  with- 
out authority  from  them;  and  it  was  to  place  these  things  under  the 
guardianship  and  protection  of  the  new  government,  and  to  clothe  it 
with  the  necessary  powers,  that  the  clause  was  inserted  in  the  Con- 
stitution which  gives  Congress  the  power  "to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States."  It  was  intended  for  a 
specific  purpose,  to  provide  for  the  things  we  have  mentioned.  It 
was  to  transfer  to  the  new  government  the  property  then  held  in 
common  by  the  States,  and  to  give  to  that  government  power  to 
apply  it  to  the  objects  for  which  it  had  been  destined  by  mutual  agree- 
ment among  the  States  before  their  league  was  dissolved.  It  applied 
only  to  the  property  which  the  States  held  in  common  at  that  time, 
and  had  no  reference  whatever  to  any  territory  or  other  property 
which  the  new  sovereignty  might  afterwards  itself  acquire. 

The  language  used  in  the  clause,  the  arrangement  and  combina- 
tion of  the  powers,  and  the  somewhat  unusual  phraseology  it  uses, 
when  it  speaks  of  the  political  power  to  be  exercised  in  the  govern- 


THE    DRED    SCOTT    DECISION.  339 

ment  of  the  territory,  all  indicate  the  design  and  meaning  of  the 
clause  to  be  such  as  we  have  mentioned.  It  does  not  speak  of  any 
territory,  nor  of  territories,  but  uses  language  which,  according  to 
its  legitimate  meaning^  points  to  a  particular  thing.  The  power  is 
given  in  relation  only  to  the  territory  of  the  United  States,  that  is,  to 
a  territory  then  in  existence,  and  then  known  or  claimed  as  the  ter- 
ritory of  the  United  States.  It  begins  its  enumeration  of  powers  by 
that  of  disposing,  in  other  words,  making  sale  of  the  lands,  or  raising 
money  from  them,  which,  as  we  have  already  said,  was  the  main 
object  of  the  cession,  and  which  is  accordingly  the  first  thing  pro- 
vided for  in  the  article.  It  then  gives  the  power  which  was  neces- 
sarily associated  with  the  disposition  and  sale  of  the  lands,  that  is, 
the  power  of  making  needful  rules  and  regulations  respecting  the 
territory.  And  whatever  construction  may  now  be  given  to  these 
words,  everyone,  we  think,  must  admit  that  they  are  not  the  words 
usually  employed  by  statesmen  in  giving  supreme  power  of  legisla- 
tion. They  are  certainly  very  unlike  the  words  used  in  the  power 
granted  to  legislate  over  territory  which  the  new  government  might 
afterwards  itself  obtain  by  cession  from  a  State,  either  for  its  seat  of 
government,  or  for  forts,  magazines,  arsenals,  dock  yards,  and  other 
needful  buildings. 

And  the  same  power  of  making  needful  rules  respecting  the  ter- 
ritory is,  in  precisely  the  same  language,  applied  to  the  other  prop- 
erty belonging  to  the  United  States,  associating  the  power  over  the 
territory  in  this  respect  with  the  power  over  movable  or  personal 
property,  that  is,  the  ships,  arms,  and  munitions  of  war,  which  then 
belonged  in  common  to  the  State  sovereignties.  And  it  will  hardly 
be  said  that  this  power,  in  relation  to  the  last-mentioned  objects,  was 
deemed  necessary  to  be  thus  specially  given  to  the  new  government, 
in  order  to  authorize  it  to  make  needful  rules  and  regulations  respect- 
ing the  ships  it  might  itself  build,  or  arms  and  munitions  of  war  it 
might  itself  manufacture  or  provide  for  the  public  service. 

No  one,  it  is  believed,  would  think  a  moment  of  deriving  the 
power  of  Congress  to  make  needful  rules  and  regulations  in  relation 
to  property  of  this  kind  from  this  clause  of  the  Constitution.  Nor 
can  it,  upon  any  fair  construction,  be  applied  to  any  property  but 
that  which  the  new  government  was  about  to  receive  from  the  con- 
federated States.  And  if  this  be  true  as  to  this  property,  it  must  be 
equally  true  and  limited  as  to  the  territory  which  is  so  carefully  and 
precisely  coupled  with  it,  and,  like  it,  referred  to  as  property  in  the 

22 


340  THE    DRED   SCOTT    DECISION. 

power  granted.  The  concluding  words  of  the  clause  appear  to  render 
this  construction  irresistible;  for,  after  the  provisions  we  have  men- 
tioned, it  proceeds  to  say  "that  nothing  in  the  Constitution  shall  be 
so  construed  as  to  prejudice  any  claims  of  the  United  States,  or  of 
any  particular  State." 

Now,  as  we  have  before  said,  all  of  the  States,  except  North  Caro- 
lina and  Georgia,  had  made  the  cession  before  the  Constitution  was 
adopted,  according  to  the  resolution  of  Congress  of  October  10,  1780. 
The  claims  of  other  States  that  the  unappropriated  lands  in  these  two 
States  should  be  applied  to  the  common  benefit,  in  like  manner,  was 
still  insisted  on,  but  refused  by  the  States.  And  this  member  of  the 
clause  in  question  evidently  applies  to  them,  and  can  apply  to  nothing 
else.  It  was  to  exclude  the  conclusion  that  either  party,  by  adopting 
the  Constitution,  would  surrender  what  they  deemed  their  rights. 
And  when  the  latter  provision  relates  so  obviously  to  the  unappro- 
priated lands  not  yet  ceded  by  the  States,  and  the  first  clause  makes 
provision  for  those  then  actually  ceded,  it  is  impossible,  by  any  just 
rule  of  construction,  to  make  the  first  provision  general,  and  extend 
to  all  territories  which  the  federal  government  might  in  any  way 
afterwards  acquire,  when  the  latter  is  plainly  and  unequivocally  con- 
fined to  a  particular  territory,  which  was  a  part  of  the  same  contro- 
versy, and  involved  in  the  same  dispute,  and  depended  upon  the  same 
principles.  The  union  of  the  two  provisions  in  the  same  clause  shows 
that  they  were  kindred  subjects,  and  that  the  whole  clause  is  local, 
and  relates  only  to  lands  within  the  limits  of  the  United  States  which 
had  been  or  then  were  claimed  by  a  State,  and  that  no  other  terri- 
tory was  in  the  mind  of  the  framers  of  the  Constitution,  or  intended 
to  be  embraced  in  it.  Upon  any  other  construction  it  would  be 
impossible  to  account  for  the  insertion  of  the  last  provision  in  the 
place  where  it  is  found,  or  to  comprehend  why,  or  for  what  object,  it 
was  associated  with  the  previous  provision. 

This  view  of  the  subject  is  confirmed  by  the  manner  in  which  the 
present  government  of  the  United  States  dealt  with  the  subject  as 
soon  as  it  came  into  existence.  It  must  be  borne  in  mind  that  the 
same  States  that  formed  the  Confederation  also  formed  and  adopted 
the  new  government,  to  which  so  large  a  portion  of  their  former  sov- 
ereign powers  were  surrendered.  It  must  also  be  borne  in  mind  that 
all  of  these  same  States  which  had  then  ratified  the  new  Constitution 
were  represented  in  the  Congress  which  passed  the  first  law  for  the 
government  of  this  territory;  and  many  of  the  members  of  that  legis- 


THE    DRED    SCOTT    DECISION.  341 

lative  body  had  been  deputies  from  the  States  under  the  Confed- 
eration, had  united  in  adopting  the  ordinance  of  1787,  and  assisted  in 
forming  the  new  government  under  which  they  were  then  acting,  and 
whose  powers  they  were  then  exercising.  And  it  is  obvious  from  the 
law  they  passed  to  carry  into  effect  the  principles  and  provisions  of 
the  ordinance,  that  they  regarded  it  as  the  act  of  the  States  done  in 
the  exercise  of  their  legitimate  powers  at  the  time.  The  new  gov- 
ernment took  the  territory  as  it  found  it,  and  in  the  condition  in  which 
it  was  transferred,  and  did  not  attempt  to  undo  anything  that  had 
been  done.  And  among  the  earliest  laws  passed  under  the  new 
government  is  one  reviving  the  ordinance  of  1787,  which  had  become 
inoperative  and  a  nullity  upon  the  adoption  of  the  Constitution.  This 
law  introduces  no  new  form  or  principles  for  its  government,  but 
recites  in  the  preamble  that  it  is  passed  in  order  that  this  ordinance 
may  continue  to  have  full  effect,  and  proceeds  to  make  only  those 
rules  and  regulations  which  were  needful  to  adapt  it  to  the  new  gov- 
ernment, into  whose  hands  the  power  had  fallen.  It  appears,  there- 
fore, that  this  Congress  regarded  the  purposes  to  which  the  land  in 
this  territory  was  to  be  applied,  and  the  form  of  government  and 
principles  of  jurisprudence  which  were  to  prevail  there,  while  it 
remained  in  the  territorial  state,  as  already  determined  on  by  the 
States  when  they  had  full  power  and  right  to  make  the  decision,  and 
that  the  new  government,  having  received  it  in  this  condition,  ought 
to  carry  substantially  into  effect  the  plans  and  principles  which  had 
been  previously  adopted  by  the  States,  and  which  no  doubt  the  States 
anticipated  when  they  surrendered  their  power  to  the  new  govern- 
ment. And  if  we  regard  this  clause  of  the  Constitution  as  pointing 
to  this  territory,  with  a  territorial  government  already  established  in 
it,  which  had  been  ceded  to  the  States  for  the  purposes  hereinbefore 
mentioned,  every  word  in  it  is  perfectly  appropriate  and  easily  under- 
stood, and  the  provisions  it  contains  are  in  perfect  harmony  with  the 
objects  for  which  it  was  ceded,  and  with  the  condition  of  its  govern- 
ment as  a  territory  at  the  time.  We  can,  then,  easily  account  for  the 
manner  in  which  the  first  Congress  legislated  on  the  subject,  and  can 
also  understand  why  this  power  over  the  territory  was  associated  in 
the  same  clause  with  the  other  property  of  the  United  States,  and 
subjected  to  the  like  power  of  making  needful  rules  and  regulations. 
But  if  the  clause  is  construed  in  the  expanded  sense  contended  for, 
so  as  to  embrace  any  territory  acquired  from  a  foreign  nation  by  the 
present  government,  and  to  give  it  in  such  territory  a  despotic  and 


342  THE    DRED    SCOTT    DECISION. 

unlimited  power  over  persons  and  property,  such  as  the  confederated 
States  might  exercise  in  their  common  property,  it  would  be  difficult 
to  account  for  the  phraseology  used,  when  compared  with  other 
grants  of  power,  and  also  for  its  association  with  the  other  provisions 
in  the  same  clause. 

The  Constitution  has  always  been  remarkable  for  the  felicity  of  its 
arrangement  of  different  subjects,  and  the'  perspicuity  and  appro- 
priateness of  the  language  it  uses.  But  if  this  clause  is  construed  to 
extend  to  territory  acquired  by  the  present  government  from  a  foreign 
nation,  outside  of  the  limits  of  any  charter  from  the  British  Govern- 
ment to  a  colony,  it  would  be  difficult  to  say  why  it  was  deemed  nec- 
essary to  give  the  government  the  power  to  sell  any  vacant  lands 
belonging  to  the  sovereignty  which  might  be  found  within  it,  and,  if 
this  was  necessary,  why  the  grant  of  this  power  should  precede  the 
power  to  legislate  over  it  and  establish  a  government  there,  and  still 
more  difficult  to  say  why  it  was  deemed  necessary  so  specially  and 
particularly  to  grant  the  power  to  make  needful  rules  and  regulations 
in  relation  to  any  personal  or  movable  property  it  might  acquire 
there,  for  the  words  "other  property"  necessarily,  by  every  known 
rule  of  interpretation,,  must  mean  property  of  a  different  description 
from  territory  or  land.  And  the  difficulty  would  perhaps  be  insur- 
mountable in  endeavoring  to  account  for  the  last  member  of  the  sen- 
tence, which  provides  that  "  nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United  States  or  any  par- 
ticular State,"  or  to  say  how  any  particular  State  could  have  claims 
in  or  to  a  territory  ceded  by  a  foreign  government,  or  to  account  for 
associating  this  provision  with  the  preceding  provisions  of  the  clause, 
with  which  it  would  appear  to  have  no  connection. 

The  words  "needful  rules  and  regulations"  would  seem,  also,  to 
have  been  cautiously  used  for  some  definite  object.  They  are  not 
the  words  usually  employed  by  statesmen  when  they  mean  to  give 
the  powers  of  sovereignty,  or  to  establish  a  government,  or  to  authorize 
its  establishment.  Thus,  in  the  law  to  renew  and  keep  alive  the 
ordinance  of  1787,  and  to  reestablish  the  government,  the  title  of  the 
law  is,  "An  act  to  provide  for  the  government  of  the  territory  north- 
west of  the  river  Ohio."  And  in  the  Constitution,  when  granting  the 
power  to  legislate  over  the  territory  that  may  be  selected  for  the  seat 
of  government  independently  of  a  State,  it  does  not  say  Congress 
shall  have  power  "to  make  all  needful  rules  and  regulations  respect- 
ing the  territory,"  but  it  declares  that  "  Congress  shall  have  power  to 


THE    DRED    SCOTT    DECISION.  343 

exercise  exclusive  legislation  in  all  cases  whatsoever  over  such  dis- 
trict (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particular 
States  and  the  acceptance  of  Congress,  become  the  seat  of  the  gov- 
ernment of  the  United  States." 

The  words  "  rules  and  regulations  "  are  usually  employed  in  the 
Constitution  in  speaking  of  some  particular  specified  power  which  it 
means  to  confer  on  the  government,  and  not,  as  we  have  seen,  when 
granting  general  powers  of  legislation,  as,  for  example,  in  the  par- 
ticular power  to  Congress  "to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces,  or  the  particular  and  specific 
power  to  regulate  commerce,"  "  to  establish  a  uniform  rule  of  natu- 
ralization," "to  coin  money  and  regulate  the  value  thereof."  And 
to  construe  the  words  of  which  we  are  speaking  as  a  general  and 
unlimited  grant  of  sovereignty  over  territories  which  the  government 
might  afterwards  acquire,  is  to  use  them  in  a  sense  and  for  a  purpose 
for  which  they  were  not  used  in  any  other  part  of  the  instrument. 
But  if  confined  to  a  particular  territory,  in  which  a  government  and 
laws  had  already  been  established,  but  which  would  require  some 
alterations  to  adapt  it  to  the  new  government,  the  words  are  peculiarly 
applicable  and  appropriate  for  that  purpose.  ' 

The  necessity  of  this  special  provision  in  relation  to  property,  and 
the  rights  or  property  held  in  common  by  the  confederated  States,  is 
illustrated  by  the  first  clause  of  the  sixth  article.  This  clause  pro- 
vides that  "all  debts,  contracts,  and  engagements  entered  into  before 
the  adoption  of  this  Constitution  shall  be  as  valid  against  the  United 
States  under  this  government  as  under  the  Confederation."  This 
provision,  like  the  one  under  consideration,  was  indispensable  if  the 
new  Constitution  was  adopted.  The  new  government  was  not  a 
mere  change  in  a  dynasty,  or  in  a  form  of  government,  leaving  the 
nation  or  sovereignty  the  same,  and  clothed  with  all  the  rights  and 
bound  by  all  the  obligations  of  the  preceding  one.  But,  when  the 
present  United  States  came  into  existence  under  the  new  govern- 
ment, it  was  a  new  political  body,  a  new  nation,  then  for  the  first 
time  taking  its  place  in  the  family  of  nations.  It  took  nothing  by 
succession  from  the  Confederation.  It  had  no  right,  as  its  successor, 
to  any  property  or  rights  of  property  which  it  had  acquired,  and  was 
not  liable  for  any  of  its  obligations.  It  was  evidently  viewed  in  this 
light  by  the  framers  of  the  Constitution.  And  as  the  several  States 
would  cease  to  exist  in  their  former  confederated  character  upon  the 
adoption  of  the  Constitution,  and  could  not,  in  that  character,  again 


344  THE   DRED   SCOTT   DECISION. 

assemble  together,  special  provisions  were  indispensable  to  transfer 
to  the  new  government  the  property  and  rights  which  at  that  time 
they  held  in  common,  and  at  the  same  time  to  authorize  it  to  lay 
taxes  and  appropriate  money  to  pay  the  common  debt  which  they 
had  contracted,  and  this  power  could  only  be  given  to  it  by  special 
provisions  in  the  Constitution.  The  clause  in  relation  to  the  territory 
and  other  property  of  the  United  States  provided  for  the  first,  and 
the  clause  last  quoted  provided  for  the  other.  They  have  no  con- 
nection with  the  general  powers  and  rights  of  sovereignty  delegated 
to  the  new  government,  and  can  neither  enlarge  nor  diminish  them. 
They  were  inserted  to  meet  a  present  emergency,  and  not  to  regulate 
its  powers  as  a  government. 

Indeed,  a  similar  provision  was  deemed  necessary  in  relation  to 
treaties  made  by  the  Confederation,  and  when,  in  the  clause  next 
succeeding  the  one  of  which  we  have  last  spoken,  it  is  declared  that 
treaties  shall  be  the  supreme  law  of  the  land,  care  is  taken  to  include, 
by  express  words,  the  treaties  made  by  the  confederated  States.  The 
language  is,  "And  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States  shall  be  the  supreme  law  of  the 
land." 

Whether,  therefore,  we  take  the  particular  clause  in  question  by 
itself,  or  in  connection  with  the  other  provisions  of  the  Constitution, 
we  think  it  clear  that  it  applies  only  to  the  particular  territory  of 
which  we  have  spoken,  and  cannot,  by  any  just  rule  of  interpretation, 
be  extended  to  territory  which  the  new  government  might  afterwards 
obtain  from  a  foreign  nation.  Consequently,  the  power  which  Con- 
gress may  have  lawfully  exercised  in  this  territory  while  it  remained 
under  a  territorial  government,  and  which  may  have  been  sanctioned 
by  judicial  decision,  can  furnish  no  justification  and  no  argument  to 
support  a  similar  exercise  of  power  over  territory  afterwards  acquired 
by  the  federal  government.  We  put  aside,  therefore,  any  argu- 
ment drawn  from  precedents,  showing  the  extent  of  the  power  which 
the  general  government  exercised  over  slavery  in  this  territory,  as 
altogether  inapplicable  to  the  case  before  us. 

But  the  case  of  the  American  and  Ocean  Insurance  Companies  vs. 
Canter  (i  Pet.  511)  has  been  quoted  as  establishing  a  different  con- 
struction of  this  clause  of  the  Constitution.  There  is,  however,  not 
the  slightest  conflict  between  'the  opinion  now  given  and  the  one 
referred  to,  and  it  is  only  by  taking  a  single  sentence  out  of  the  latter 
and  separating  it  from  the  context  that  even  an  appearance  of  conflict 


THE    DRED    SCOTT    DECISION.  345 

can  be  shown.  We  need  not  comment  on  such  a  mode  of  expound- 
ing an  opinion  of  the 'court.  Indeed,  it  most  commonly  misrepre- 
sents instead  of  expounding  it.  And  this  is  fully  exemplified  in  the 
"case  referred  to,  where,  if  one  sentence  is  taken  by  itself,  the  opinion 
would  appear  to  be  in  direct  conflict  with  that  now  given;  but  the 
words  which  immediately  follow  that  sentence  show  that  the  court 
did  not  mean  to  decide  the  point,  but  merely  affirmed  the  power  of 
Congress  to  establish  a  government  in  the  territory,  leaving  it  an  open 
question  whether  that  power  was  derived  from  this  clause  in  the  Con- 
stitution, or  was  to  be  necessarily  inferred  from  a  power  to  acquire 
territory  by  cession  from  a  foreign  government.  The  opinion  on  this 
part  of  the  case  is  short,  and  we  give  the  whole  of  it  to  show  how 
well  the  selection  of  a  single  sentence  is  calculated  to  mislead. 

The  passage  referred  to  is  in  page  542,  in  which  the  court,  in 
speaking  of  the  power  of  Congress  to  establish  a  territorial  govern- 
ment in  Florida  until  it  should  become  a  State,  uses  the  following 
language:— 

"  In  the  meantime  Florida  continues  to  be  a  territory  of  the  United 
States,  governed  by  that  clause  of  the  Constitution  which  empowers 
Congress  to  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  of  the  United  States.  Perhaps  the  power 
of  governing  a  territory  belonging  to  the  United  States  which  has  not, 
by  becoming  a  State,  acquired  the  means  of  self-government,  may 
result,  necessarily,  from  the  £acts  that  it  is  not  within  the  jurisdiction 
of  any  particular  State,  and  is  within  the  power  and  jurisdiction  of 
the  United  States.  The  right  to  govern  may  be  the  inevitable  con- 
sequence of  the  right  to  acquire  territory.  Whichever  may  be  the 
source  from  which  the  power  is  derived,  the  possession  of  it  is  unques- 
tionable." 

It  is  thus  clear,  from  the  whole  opinion  on  this  point,  that  the 
court  did  not  mean  to  decide  whether  the  power  was  derived  from 
the  clause  in  the  Constitution  or  was  the  necessary  consequence  of 
the  right  to  acquire.  They  do  decide  that  the  power  in  Congress  is 
unquestionable,  and  in  this  we  entirely  concur,  and  nothing  will  be 
found  in  this  opinion  to  the  contrary.  The  power  stands  firmjy  on 
the  latter  alternative  put  by  the  court,  that  is,  as  "the  inevitable  con- 
sequence of  the  right  to  acquire  territory" 

And  what  still  more  clearly  demonstrates  that  the  court  did  not 
mean  to  decide  the  question,  but  leave  it  open  for  future  considera- 
tion, is  the  fact  that  the  case  was  decided  in  the  Circuit  Court  by  Mr, 


346  THE   DRED   SCOTT   DECISION. 

Justice  Johnson,  and  his  decision  was  affirmed  by  the  Supreme  Court. 
His  opinion  at  the  circuit  is  given  in  full  in  a  note  to  the  case,  and  in 
that  opinion  he  states,  in  explicit  terms,  that  the  clause  of  the  Con- 
stitution applies  only  to  the  territory  then  within  the  limits  of  the 
United  States,  and  not  to  Florida,  which  had  been  acquired  by  cession 
from  Spain.  This  part  of  his  opinion  will  be  found  in  the  note  in 
page  517  of  the  report.  But  he  does  not  dissent  from  the  opinion  of 
the  Supreme  Court,  thereby  showing  that,  in  his  judgment,  as  well 
as  that  of  the  court,  the  case  before  them  did  not  call  for  a  decision 
on  that  particular  point,  and  the  court  abstained  from  deciding  it. 
And  in  a  part  of  its  opinion  subsequent  to  the  passage  we  have 
quoted,  where  the  court  speaks  of  the  legislative  power  of  Congress 
in  Florida,  they  still  speak  with  the  same  reserve.  ,  And  in  page 
546,  speaking  of  the  power  of  Congress  to  authorize  the  territorial 
Legislature  to  establish  courts  there,  the  court  say:  "They  are  leg- 
islative courts,  created  in  virtue  of  the  general  right  of  sovereignty 
which  exists  in  the  government,  or  in  virtue  of  that  clause  which 
enables  Congress  to  make  all  needful  rules  and  regulations  respect- 
ing the  territory  belonging  to  the  United  States." 

It  has  been  said  that  the  construction  given  to  this  clause  is  new, 
and  now  for  the  first  time  brought  forward.  The  case  of  which  we 
are  speaking,  and  which  has  been  so  much  discussed,  shows  that  the 
fact  is  otherwise.  It  shows  that  precisely  the  same  question  came 
before  Mr.  Justice  Johnson  at  his  circuit  thirty  years  ago,  was  fully 
considered  by  him,  and  the  same  construction  given  to  the  clause  in 
the  Constitution  which  is  now  given  by  this  court,  and  that,  upon  an 
appeal  from  his  decision,  the  same  question  was  brought  before  this 
court,  but  was  not  decided  because  a  decision  upon  it  was  not  required 
by  the  case  before  the  court. 

There  is  another  sentence  in  the  opinion  which  has  been  com- 
mented on  which,  even  in  a  still  more  striking  manner,  shows  how 
one  may  mislead  or  be  misled  by  taking  out  a  single  sentence  from 
the  opinion  of  a  court,  and  leaving  out  of  view  what  precedes  and 
follows.  It  is  in  page  546,  near  the  close  of  the  opinion,  in  which  the 
court  say:  "In  legislating  for  them  [the  territories  of  the  United 
.States]  Congress  exercises  the  combined  powers  of  the  general  and 
of  a  State  government."  And  it  is  said  that,  as  a  State  may  unques- 
tionably prohib't  slavery  within  its  territory,  this  sentence  decides  in 
effect  that  Congress  may  do  the  same  in  a  territory  of  the  United 
States,  exercising  there  the  powers  of  a  State  as  well  as  the  power 
of  the  general  government. 


THE    DRED    SCOTT    DECISION.  347 

The  examination  of  this  passage  in  the  case  referred  to  would  be 
more  appropriate  when  we  come  to  consider  in  another  part  of  this 
opinion  what  power  Congress  can  constitutionally  exercise  in  a  ter- 
ritory over  the  rights  of  person  or  rights  of  property  of  a  citizen. 
But,  as  it  is  in  the  same  case  with  the  passage  we  have  before  com- 
mented on,  we  dispose  of  it  now,  as  it  will  save  the  court  from  the 
necessity  of  referring  again  to  the  case.  And  it  will  be  seen,  upon 
reading  the  page  on  which  this  sentence  is  found,  that  it  has  no  ref- 
erence whatever  to  the  power  of  Congress  over  Bights  of  person  or 
rights  of  property,  but  relates  altogether  to  the  power  of  establishing 
judicial  tribunals  to  administer  the  laws  constitutionally  passed,  and 
defining  the  jurisdiction  they  may  exercise. 

The  law  of  Congress  establishing  a  territorial  government  in 
Florida  provided  that  the  Legislature  of  the  territory  should  have 
legislative  powers  over  "all  rightful  objects  of  legislation,  but  no  law 
should  be  valid  which  was  inconsistent  with  the  laws  and  Constitution 
of  the  United  States." 

Under  the  power  thus  conferred,  the  Legislature  of  Florida  passed 
an  act  erecting  a  tribunal  at  Key  West  to  decide  cases  of  salvage. 
And  in  the  case  of  which  we  are  speaking,  the  question  arose  whether 
the  territorial  Legislature  could  be  authorized  by  Congress  to  estab- 
lish such  a  tribunal  with  such  powers,  and  one  of  the  parties,  among 
other  objections,  insisted  that  Congress  could  not  under  the  Consti- 
tution authorize  the  Legislature  of  the  territory  to  establish  such  a 
tribunal  with  such  powers,  but  that  it  must  be  established  by  Con- 
gress itself,  and  that  a  sale  of  cargo  made  under  its  order  to  pay 
salvors  was  void,  as  made  without  legal  authority,  and  passed  no 
property  to  the  purchaser. 

It  is  in  disposing  of  this  objection  that  the  sentence  relied  on 
occurs,  and  the  court  begin  that  part  of  the  opinion  by  stating  with 
great  precision  the  point  which  they  are  about  to  decide. 

They  say:  "  It  has  been  contended  that  by  the  Constitution  of  the 
United  States  the  judicial  power  of  the  United  States  extends  to  all 
cases  of  admiralty  and  maritime  jurisdiction,  and  that  the  whole  of 
the  judicial  power  must  be  vested  '  in  one  Supreme  Court,  and  in 
such  inferior  courts  as  Congress  shall  from  time  to  time  ordain  and 
establish.'  Hence  it  has  been  argued  that  Congress  cannot  vest 
admiralty  jurisdiction  in  courts  created  by  the  territorial  Legislature." 

And  after  thus  clearly  stating  the  point  before  them,  and  which 
they  were  about  to  decide,  they  proceed  to  show  that  these  territorial 


348  THE    DRED    SCOTT    DECISION. 

tribunals  were  not  constitutional  courts,  but  merely  legislative,  and 
that  Congress  might,  therefore,  delegate  the  power  to  the  territorial 
government  to  establish  the  court  in  question,  and  they  conclude 
that  part  of  the  opinion  in  the  following  words:  "Although  admiralty 
jurisdiction  can  be  exercised  in  the  States  in  those  courts  only  which 
are  established  in  pursuance  of  the  third  article  of  the  Constitution, 
the  same  limitation  does  not  extend  to  the  territories.  In  legislating 
for  them  Congress  exercises  the  combined  powers  of  the  general  and 
State  government*." 

Thus  it  will  be  seen  by  these  quotations  from  the  opinion  that  the 
court,  after  stating  the  question  it  was  about  to  decide  in  a  manner 
too  plain  to  be  misunderstood,  proceeded  to  decide  it,  and  announced, 
as  the  opinion  of  the  tribunal,  that  in  organizing  the  judicial  depart- 
ment of  the  government  in  a  territory  of  the  United  States,  Congress 
does  not  act  under,  and  is  not  restricted  by,  the  third  article  in  the 
Constitution,  and  is  not  bound  in  a  territory  to  ordain  and  establish 
courts  in  which  the  judges  hold  their  offices  during  good  behavior, 
but  may  exercise  the  discretionary  power  which  a  State  exercises  in 
establishing  its  judicial  department,  and  regulating  the  jurisdiction  of 
its  courts,  and  may  authorize  the  territorial  government  to  establish, 
or  may  itself  establish,  courts  in  which  the  judges  hold  their  offices 
for  a  term  of  years  only,  and  may  vest  in  them  judicial  power  upon 
subjects  confided  to  the  judiciary  of  the  United  States.  And  in  doing 
this,  Congress  undoubtedly  exercises  the  combined  power  of  the 
general  and  a  State  government.  It  exercises  the  discretionary 
power  of  a  State  government  in  authorizing  the  establishment  of  a 
court  in  which  the  judges  hold  their  appointments  for  a  term  of  years 
only,  and  not  during  good  behavior;  and  it  exercises  the  power  of 
the  general  government  in  investing  that  court  with  admiralty  juris- 
diction, over  which  the  general  government  had  exclusive  jurisdic- 
tion in  the  territory. 

No  one,  we  presume,  will  question  the  correctness  of  that  opinion, 
nor  is  there  anything  in  conflict  with  it  in  the  opinion  now  given. 
The  point  decided  in  the  case  cited  has  no  relation  to  the  question 
now  before  the  court.  That  depended  on  the  construction  of  the 
third  article  of  the  Constitution,  in  relation  to  the  judiciary  of  the 
United 'States  and  the  power  which  Congress  might  exercise  in  a 
territory  in  organizing  the  judicial  department  of  the  government. 
The  case  before  us  depends  upon  other  and  different  provisions  of 
the  Constitution,  altogether  separate  and  apart  from  the  one  above 


THE   DRED   SCOTT    DECISION.  349 

mentioned.  The  question  as  to  what  courts  Congress  may  ordain 
or  establish  in  a  territory  to  administer  laws  which  the  Constitution 
authorizes  it  to  pass,  and  what  laws  it  is  or  is  not  authorized  by  the 
Constitution  to  pass,  are  widely  different — are  regulated  by  different 
and  separate  articles  of  the  Constitution,  and  stand  upon  different 
principles.  And  we  are  satisfied  that  no  one  who  reads  attentively 
the  page  in  "  Peters'  Reports' '  to  which  we  have  referred,  can  sup- 
pose that  the  attention  of  the  court  was  drawn  for  a  moment  to  the 
question  now  before  this  court,  or  that  it  meant  in  that  case  to  say 
that  Congress  had  a  right  to  prohibit  a  citizen  of  the  United  States 
from  taking  any  property  which  he  lawfully  held  into  a  territory  of 
the  United  States. 

This  brings  us  to  examine  by  what  provision  of  the  Constitution 
the  present  federal  government,  under  its  delegated  and  restricted 
powers,  is  authorized  to  acquire  territory  outside  of  the  original 
limits  of  the  United  States,  and  what  powers  it  may  exercise  therein 
over  the  person  or  property  of  a  citizen  of  the  United  States,  while  it 
remains  a  territory,  and  until  it  shall  be  admitted  as  one  of  the  States 
of  the  Union. 

There  is  certainly  no  power  given  by  the  Constitution  to  the  fed- 
eral government  to  establish  or  maintain  colonies  bordering  on  the 
United  States  or  at  a  distance,  to  be  ruled  and  governed  at  its  own 
pleasure,  nor  to  enlarge  its  territorial  limits  in  any  way,  except  by 
the  admission  of  new  States.  That  power  is  plainly  given;  and,  if  a 
new  State  is  admitted,  it  needs  no  further  legislation  by  Congress, 
because  the  Constitution  itself  defines  the  relative  rights  and  powers 
and  duties  of  the  State,  and  the  citizens  of  the  State,  and  the  fed- 
eral government.  But  no  power  is  given  to  acquire  a  territory  to  be 
held  and  governed  permanently  in  that  character. 

And,  indeed,  the  power  exercised  by  Congress  to  acquire  terri- 
tory and  establish  a  gcvernment  there,  according  to  its  own  unlim- 
ited discretion,  was  viewed  with  great  jealousy  by  the  leading  states- 
men of  the  day.  And  in  the  Federalist  (No.  38),  written  by  Mr. 
Madison,  he  speaks  of  the  acquisition  of  the  Northwestern  Territory 
by  the  confederated  States,  by  the  cession  from  Virginia,  and  the 
establishment  of  a  government  there,  as  an  exercise  of  power  not 
warranted  by  the  Articles  of  Confederation,  and  dangerous  to  the 
liberties  of  the  people,  and  he  urges  the  adoption  of  the  Constitution 
as  a  security  and  safeguard  against  such  an  exercise  of  power. 

We  do  not  mean,  however,  to  question  the  power  of  Congress  in 


350  THE    DRED    SCOTT    DECISION. 

this  respect.  The  power  to  expand  the  territory  of  the  United  States 
by  the  admission  of  new  States  is  plainly  given,  and,  in  the  construc- 
tion of  this  power  by  all  the  departments  of  the  government,  it  has 
been  held  to  authorize  the  acquisition  of  territory  not  fit  for  admission 
at  the  time,  but  to  be  admitted  as  soon  as  its  population  and  situa- 
tion would  entitle  it  to  admission.  It  is  acquired  to  become  a  State, 
and  not  to  be  held  as  a  colony  and  governed  by  Congress  with  abso- 
lute authority;  and,  as  the  propriety  of  admitting  a  new  State  is  com- 
mitted to  the  sound  discretion  of  Congress,  the  power  to  acquire 
territory  for  that  purpose,  to  be  held  by  the  United  States  until  it  is 
in  a  suitable  condition  to  become  a  State  upon  an  equal  footing  with 
the  other  States,  must  rest  upon  the  same  discretion.  It  is  a  ques- 
tion for  the  political  department  of  the  government,  and  not  the 
judicial,  and,  whatever  the  political  department  of  the  government 
shall  recognize  as  within  the  limits  of  the  United  States,  the  judicial 
department  is  also  bound  to  recognize,  and  to  administer  in  it  the 
laws  of  the  United  States,  so  far  as  they  apply,  and  to  maintain  in  the 
territory  the  authority  and  rights  of  the  government,  and  also  the 
personal  rights  and  rights  of  property  of  individual  citizens,  as  secured 
by  the  Constitution.  All  we  mean  to  say  on  this  point  is  that,  as 
there  is  no  express  regulation  in  the  Constitution  defining  the  power 
which  the  general  government  may  exercise  over  the  person  or  prop- 
erty of  a  citizen  in  a  territory  thus  acquired,  the  court  must  neces- 
sarily look  to  the  provisions  and  principles  of  the  Constitution,  and 
its  distribution  of  powers,  for  the  rules  and  principles  by  which  its 
decision  must  be  governed. 

Taking  this  rule  to  guide  us,  it  may  be  safely  assumed  that  citizens 
of  the  United  States  who  migrate  to  a  territory  belonging  to  the 
people  of  the  United  States,  cannot  be  ruled  as  mere  colonists,  de- 
pendent upon  the  will  of  the  general  government,  and  to  be  governed 
by  any  laws  it  may  think  proper  to  impose.  The  principle  upon 
which  our  governments  rest,  and  upon  which  alone  they  continue  to 
exist,  is  the  union  of  States,  sovereign  and  independent  within  their 
own  limits  in  their  internal  and  domestic  concerns,  and  bound  together 
as  one  people  by  a  general  government,  possessing  certain  enumer- 
ated and  restricted  powers,  delegated  to  it  by  the  people  of  the  sev- 
eral States,  and  exercising  supreme  authority  within  the  scope  of  the 
powers  granted  to  it  throughout  the  dominion  of  the  United  States. 
A  power,  therefore,  in  the  generfi  government  to  obtain  and  hold 
colonies  and  dependent  territories,  over  which  they  might  legislate 


THE    DRED    SCOTT    DECISION.  351 

without  restriction,  would  be  inconsistent  with  its  own  existence  in 
its  present  form.  Whatever  it  acquires  it  acquires  for  the  benefit  of 
the  people  of  the  several  States  who  created  it.  It  is  their  trustee, 
acting  for  them,  and  charged  with  the  duty  of  promoting  the  interests 
of  the  whole  people  of  the  Union  in  the  exercise  of  the  powers  spe- 
cifically granted. 

At  the  time  when  the  territory  in  question  was  obtained  by  cession 
from  France,  it  contained  no  population  fit  to  be  associated  together 
and  admitted  as  a  State,  and  it,  therefore,  was  absolutely  necessary 
to  hold  possession  of  it,  as  a  territory  belonging  to  the  United  States, 
until  it  was  settled  and  inhabited  by  a  civilized  community  capable  of 
self-government,  and  in  a  condition  to  be  admitted  on  equal  terms 
with  the  other  States  as  a  member  of  the  Union.  But,  as  we  have 
before  said,  it  was  acquired  by  the  general  government,  as  the  repre- 
sentative and  trustee  of  the  people  of  the  United  States,  and  it  must, 
therefore,  be  held  in  that  character  for  their  common  and  equal 
benefit,  for  it  was  the  people  of  the  several  States,  acting  through 
their  agent  and  representative,  the  federal  government,  who  in  fact 
acquired  the  territory  in  question,  and  the  government  holds  it  for 
their  common  use  until  it  shall  be  associated  with  the  other  States  as 
a  member  of  the  Union. 

But,  until  that  time  arrives,  it  is  undoubtedly  necessary  that  some 
government  should  be  established,  in  order  to  organize  society,  and 
to  protect  the  inhabitants  in  their  persons  and  property;  and,  as  the 
people  of  the  United  States  could  act  in  this  matter  only  through  the 
government  which  represented  them,  and  through  which  they  spoke 
and  acted  when  the  territory  was  obtained,  it  was  not  only  within  the 
scope  of  its  powers  but  it  was  its  duty  to  pass  such  laws  and  estab- 
lish such  a  government  as  would  enable  those  by  whose  authority 
they  acted  to  reap  the  advantages  anticipated  from  its  acquisition, 
and  to  gather  there  a  population  which  would  enable  it  to  assume 
the  position  to  which  it  was  destined  among  the  States  of  the  Union. 
The  power  to  acquire  necessarily  carries  with  it  the  power  to  preserve 
and  apply  to  the  purposes  for  which  it  was  acquired.  The  form  of 
government  to  be  established  necessarily  rested  in  the  discretion  of 
Congress.  It  was  their  duty  to  establish  the  one  that  would  be  best 
suited  for  the  protection  and  security  of  the  citizens  of  the  United 
States,  and  other  inhabitants  who  might  be  authorized  to  take  up 
their  abode  there,  and  that  must  always  depend  upon  the  existing 
condition  of  the  territory,  as  to  the  number  and  character  of  its  inhab- 


352  THE    DRE1)    SCOTT    DECISION. 

Itants,  and  their  situation  in  the  territory.  In  some  cases  a  govern- 
ment, consisting  of  persons  appointed  by  the  federal  government, 
would  best  subserve  the  interests  of  the  territory  when  the  inhabitants 
were  few  and  scattered  and  new  to  one  another.  In  other  instances 
it  would  be  more  advisable  to  commit  the  powers  of  self-government 
to  the  people  who  had  settled  in  the  territory,  as  being  the  most  com- 
petent to  determine  what  was  best  for  their  own  interests.  But  some 
form  of  civil  authority  would  be  absolutely  necessary  to  organize  and 
preserve  civilized  society,  and  prepare  it  to  become  a  State,  and  what 
is  the  best  form  must  always  depend  on  the  condition  of  the  territory 
at  the  time,  and  the  choice  of  the  mode  must  depend  upon  the  exer- 
cise of  a  discretionary  power  by  Congress,  acting  within  the  scope  of 
its  constitutional  authority,  and  not  infringing  upon  the  rights  of  per- 
son or  rights  of  property  of  the  citizen  who  might  go  there  to  reside, 
or  for  any  other  lawful  purpose.  It  was  acquired  by  the  exercise  of 
this  discretion,  and  it  must  be  held  and  governed  in  like  manner  until 
it  is  fitted  to  be  a  State. 

But  the  power  of  Congress  over  the  person  or  property  of  a  citizen 
can  never  be  a  mere  discretionary  power  under  our  Constitution  and 
form  of  government.  The  powers  of  the  government  and  the  rights 
and  privileges  of  the  citizen  are  regulated  and  plainly  denned  by  the 
Constitution  itself.  And  when  the  territory  becomes  a  part  of  the 
United  States,  the  federal  government  enters  into  possession  in  the 
character  impressed  upon  it  by  those  who  created  it.  It  enters  upon 
it  with  its  powers  over  the  citizen  strictly  defined,  and  limited  by  the 
Constitution,  from  which  it  Derives  its  own  existence,  and  by  virtue 
of  which  alone  it  continues  to  exist  and  act  as  a  government  and  sov- 
ereignty. It  has  no  power  of  any  kind  beyond  it,  and  it  cannot,  when 
it  enters  a  territory  of  the  United  States,  put  off  its  character,  and 
assume  discretionary  or  despotic  powers  which  the  Constitution  has 
denied  to  it.  It  cannot  create  for  itself  a  new  character  separated 
from  the  citizens  of  the  United  States,  and  the  duties  it  owes  them 
under  the  provisions  of  the  Constitution.  The  territory  being  a  part 
of  the  United  States,  the  government  and  the  citizen  both  enter  it 
under  the  authority  of  the  Constitution,  with  their  respective  rights 
defined  and  marked  out,  and  the  federal  government  can  exercise 
no  power  over  his  person  or  property  beyond  what  that  instrument 
confers,  nor  lawfully  deny  any  right  which  it  has  reserved. 

A  reference  to  a  few  of  the  provisions  of  the  Constitution  will  illus- 
trate this  proposition. 


THE    DRED    SCOTT    DECISION.  353 

For  example,  no  one,  we  presume,  will  contend  that  Congress 
can  make  any  law  in  a  territory  respecting  the  establishment  of 
religion,  or  the  free  exercise  thereof,  or  abridging  the  freedom  of 
speech  or  of  the  press,"  or  the  right  of  the  people  of  the  territory 
peaceably  to  assemble,  and  to  petition  the  government  for  the  redress 
of  grievances. 

Nor  can  Congress  deny  to  the  people  the  right  to  keep  and  bear 
arms,  nor  the  right  to  trial  by  jury,  nor  compel  anyone  to  be  a  witness 
against  himself  in  a  criminal  proceeding. 

These  powers,  and  others,  in  relation  to  rights  of  person,  which 
it  is  not  necessary  here  to  enumerate,  are,  in  express  and  positive 
terms,  denied  to  the  general  government,  and  the  rights  of  private 
property  have  been  guarded  with  equal  care.  Thus  the  rights  of 
property  are  united  with  the  rights  of  person,  and  placed  on  the  same 
ground  by  the  fifth  amendment  to  the  Constitution,  which  provides 
that  no  person  shall  be  deprived  of  life,  liberty,  and  property  without 
due  process  of  law.  And  an  act  of  Congress  which  deprives  a  citizen 
of  the  United  States  of  his  liberty  or  property  merely  because  he 
came  himself  or  brought  his  property  into  a  particular  territory  of 
the  United  States,  and  who  had  committed  no  offense  against  the 
laws,  could  hardly  be  dignified  with  the  name  of  due  process  of  law. 

So,  too,  it  will  hardly  be  contended,  that  Congress  could  by  law 
quarter  a  soldier  in  a  house  in  a  territory  without  the  consent  of  the 
owner  in  time  of  peace  nor  in  time  of  war,  but  in  a  manner  prescribed 
by  law.  Nor  could  they  by  law  forfeit  the  property  of  a  citizen  in  a 
territory  who  was  convicted  of  treason  for  a  longer  period  than  the 
life  of  the  person  convicted,  nor  take  private  property  for  public  use 
without  just  compensation. 

The  powers  over  person  and  property  of  which  we  speak  are  not 
only  not  granted  to  Congress,  but  are  in  express  terms  denied,  and 
they  are  forbidden  to  exercise  them.  And  this  prohibition  is  not 
confined  to  the  States,  but  the  words  are  general,  and  extend  to  the 
whole  territory  over  which  the  Constitution  gives  it  power  to  legis- 
late, including  those  portions  of  it  remaining  under  territorial  govern- 
ment, as  well  as  that  covered  by  States.  It  is  a  total  absence  of 
power  everywhere  within  the  dominion  of  the  United  States,  and 
places  the  citizens  of  a  territory,  so  far  as  these  rights  are  concerned, 
on  the  same  footing  with  citizens  of  the  States,  and  guards  them  as 
firmly  and  plainly  against  any  inroads  which  the  general  government 
might  attempt  under  the  plea  of  implied  or  incidental  powers.  And 


354  THE    DRED    SCOTT    DECISION. 

if  Congress  itself  cannot  do  this,  if  it  is  beyond  the  powers  conferred 
on  the  federal  government,  it  will  be  admitted,  we  presume,  that  it 
could  not  authorize  a  territorial  government  to  exercise  them.  It 
could  confer  no  power  on  any  local  government,  established  by  its 
authority,  to  violate  the  provisions  of  the  Constitution. 

It  seems,  however,  to  be  supposed  that  there  is  a  difference  be- 
tween property  in  a  slave  and  other  property,  and  that  different  rules 
may  be  applied  to  it  in  expounding  the  Constitution  of  the  United 
States.  And  the  laws  and  usages  of  nations,  and  the  writings  of 
eminent  jurists  upon  the  relation  of  master  and  slave  and  their  mutual 
rights  and  duties,  and  the  powers  which  governments  may  exercise 
over  it,  have  been  dwelt  upon  in  the  argument. 

But  in  considering  the  question  before  us,  it  must  be  borne  in 
mind  that  there  is  no  law  of  nations  standing  between  the  people  of 
the  United  States  and  their  government,  and  interfering  with  their 
relation  to  each  other.  The  powers  of  the  government,  and  the  rights 
of  the  citizen  under  it,  are  positive  and  practical  regulations  plainly 
written  down.  The  people  of  the  United  States  have  delegated  to  it 
certain  enumerated  powers,  and  forbidden  it  to  exercise  others.  It 
has  no  power  over  the  person  or  property  of  a  citizen  but  what  the 
citizens  of  the  United  States  have  granted.  And  no  laws  or  usages 
of  other  nations,  or  reasoning  of  statesmen  or  jurists  upon  the  rela- 
tions of  master  and  slave,  can  enlarge  the  powers  of  the  government, 
or  take  from  the  citizens  the  rights  they  have  reserved.  And  if  the 
Constitution  recognizes  the  right  of  property  of  the  master  in  a  slave, 
and  makes  no  distinction  between  that  description  of  property  and 
othei  property  owned  by  a  citizen,  no  tribunal,  acting  under  the 
authority  of  the  United  States,  whether  it  be  legislative,  executive,  or 
judicial,  has  a  right  to  draw  such  a  distinction,  or  deny  to  it  the  benefit 
of  the  provisions  and  guarantees  which  have  been  provided  for  the 
protection  of  private  property  against  the  encroachments  of  the  gov- 
ernment. 

Now,  as  we  have  already  said  in  an  earlier  part  of  this  opinion, 
upon  a  different  point,  the  right  of  property  in  a  slave  is  distinctly 
and  expressly  affirmed  in  the  Constitution.  The  right  to  traffic  in  it, 
like  an  ordinary  article  of  merchandise  and  property,  was  guaranteed 
to  the  citizens  of  the  United  States,  in  every  State  that  might  desire 
it,  for  twenty  years,  and  the  government  in  express  terms  is  pledged 
to  protect  it  in  all  future  time,  if  the  slave  escapes  from  his  owner. 
This  is  done  in  plain  words — too  plain  to  be  misunderstood.  And  no 


THE    DRED    SCOTT    DECISION.  355 

word  can  be  found  in  the  Constitution  which  gives  Congress  a  greater 
power  over  slave  property,  or  which  entitles  property  of  that  kind  to 
less  protection  than  property  of  any  other  description.  The  only 
power  conferred  is  the  power  coupled  with  the  duty  of  guarding  and 
protecting  the  owner  in  his  rights. 

Upon  these  considerations  it  is  the  opinion  of  the  court  that  the 
act  of  Congress  which  prohibited  a  citizen  from  holding  and  owning 
property  of  this  kind  in  the  territory  of  the  United  States  north  of  the 
line  therein  mentioned,  is  not  warranted  by  the  Constitution,  and  is, 
therefore,  void,  and  that  neither  Dred  Scott  himself,  nor  any  of  his 
family,  were  made  free  by  being  carried  into  this  territory,  even  if 
they  had  been  carried  there  by  tke  owner,  with  the  intention  of  be- 
coming a  permanent  resident 

We  have  so  far  examined  the  case,  as  it  stands  under  the  Consti- 
tution of  the  United  States,  and  the  powers  thereby  delegated  to  the 
federal  government. 

But  there  is  another  point  in  the  case  which  depends  on  State 
power  and  State  law,  and  it  is  contended,  on  the  part  of  the  plaintiff, 
that  he  is  made  free  by  being  taken  to  Rock  Island,  in  the  State  of 
Illinois,  independently  of  his  residence  in  the  territory  of  the  United 
States,  and,  being  so  made  free,  he  was  not  again  reduced  to  a  state 
of  slavery  by  being  brought  back  to  Missouri. 

Our  notice  of  this  part  of  the  case  will  be  very  brief,  for  the  prin- 
ciple on  which  it  depends  was  decided  in  this  court,  upon  much  con- 
sideration, in  the  case  of  Strader  et  al.  vs.  Graham,  reported  in  loth 
Howard  82.  In  that  case  the  slaves  had  been  taken  from  Kentucky 
to  Ohio,  with  the  consent  of  the  owner,  and  afterwards  brought  back 
to  Kentucky.  And  this  court  held  that  their  status,  or  condition,  as 
free  or  slave,  depended  upon  the  laws  of  Kentucky,  when  they  were 
brought  back  into  that  State,  and  not  of  Ohio,  and  that  this  court  had 
no  jurisdiction  to  revise  the  judgment  of  a  State  court  upon  its  own 
laws.  This  was  the  point  directly  before  the  court,  and  the  decision 
that  this  court  had  not  jurisdiction  turned  upon  it,  as  will  be  seen  by 
the  report  of  the  case. 

•  So  in  this  case.  As  Scott  was  a  slave  when  taken  into  the  State 
of  Illinois  by  his  owner,  and  was  there  held  as  such,  and  brought 
back  in  that  character,  his  status,  as  free  or  slave,  depended  on  the 
laws  of  Missouri,  and  not  of  Illinois. 

It  has,  however,  been  urged  in  the  argument  that  by  the  laws  of 
Missouri  he  was  free  on  his  return,  and  that  this  case,  therefore, 

23 


356  THE    DRED    SCOTT    DECISION. 

cannot  be  governed  by  the  case  of  Strader  ct  al.  vs.  Graham,  where 
it  appeared,  by  the  laws  of  Kentucky,  that  the  plaintiffs  continued  to 
be  slaves  on  their  return  from  Ohio.  But,  whatever  doubts  or  opin- 
ions may  at  one  time  have  been  entertained  upon  this  subject,  we  are 
satisfied,  upon  a  careful  examination  of  all  the  cases  decided  in  the 
State  courts  of  Missouri  referred  to,  that  it  is  now  firmly  settled  by 
the  decisions  of  the  highest  court  in  the  State  that  Scott  and  his  family 
upon  their  return  were  not  free,  but  were,  by  the  laws  "of  Missouri, 
the  property  of  the  defendant,  and  that  the  Circuit  Court  of  the  United 
States  had  no  jurisdiction  when,  by  the  laws  of  the  State,  the  plaintiff 
was  a  slave  and  not  a  citizen. 

Moreover,  the  plaintiff,  it  appears,  brought  a  similar  action  against 
the  defendant  in  the  State  court  of  Missouri,  claiming  the  freedom  of 
himself  and  his  family  upon  the  same  grounds  and  the  same  evidence 
upon  \vhich  he  relies  in  the  case  before  the  court.  The  case  was 
carried  before  the  Supreme  Court  of  the  State,  was  fully  argued  there, 
and  that  court  decided  that  neither  the  plaintiff  nor  his  family  were 
entitled  to  freedom,  and  were  still  the  slaves  of  the  defendant,  and 
reversed  the  judgment  of  the  inferior  State  court,  which  had  given  a 
different  decision.  If  the  plaintiff  supposed  that  this  judgment  of  the 
Supreme  Court  of  the  State  was  erroneous,  and  that  this  court  had 
jurisdiction  to  revise  and  reverse  it,  the  only  mode  by  which  he  could 
legally  bring  it  before  this  court  was  by  writ  of  error  directed  to  the 
Supreme  Court  of  the  State,  requiring  it  to  transmit  the  record  to  this 
court.  If  this  had  been  done,  it  is  too  plain  for  argument  that  the 
writ  must  have  been  dismissed  for  want  of  jurisdiction  in  this  court. 
The  case  of  Strader  and  others  vs.  Graham  is  directly  in  point,  and, 
indeed,  independent  of  any  decision,  the  language  of  the  25th  section 
of  the  act  of  1789  is  too  clear  and  precise  to  admit  of  controversy. 

But  the  plaintiff  did  not  pursue  the  mode  prescribed  by  law  for 
bringing  the  judgment  of  a  State  court  before  this  court  for  revision, 
but  suffered  the  case  to  be  remanded  to  the  inferior  State  court,  where 
it  is  still  continued,  and  is,  by  agreement  of  parties,  to  await  the 
judgment  of  this  court  on  the  point.  All  of  this  appears  on  the  record 
before  us,  and  by  the  printed  report  of  the  case. 

And  while  the  case  is  yet  open  and  pending  in  the  inferior  State 
court,  the  plaintiff  goes  into  the  Circuit  Court  of  the  United  States, 
upon  the  same  case  and  the  same  evidence,  and  against  the  same 
party,  and  proceeds  to  judgment,  and  then  brings  here  the  same 
case  from  the  Circuit  Court,  which  the  law  would  not  have  permitted 


THE    DRED    SCOTT    DECISION.  357 

him  to  bring  directly  from  the  State  court.  And  if  this  court  takes 
jurisdiction  in  this  form,  the  result,  so  far  as  the  rights  of  the  respec- 
tive parties  are  concerned,  is  in  every  respect  substantially  the  same 
as  if  it  had  in  open  violation  of  law  entertained  jurisdiction  over  the 
judgment  of  the  State  court  upon  a  writ  of  error,  and  revised  and 
reversed  its  judgment  upon  the  ground  that  its  opinion  upon  the 
question  of  law  was  erroneous.  It  would  ill  become  this  court  to 
sanction  such  an  attempt  to  evade  the  law,  or  to  exercise  an  appel- 
late power  in  this  circuitous  way,  which  it  is  forbidden  to  exercise  in 
the  direct  and  regular  and  invariable  forms  of  judicial  proceedings. 

Upon  the  whole,  therefore,  it  is  the  judgment  of  this  court  that  it 
appears  by  the  record  before  us  that  the  plaintiff  in  error  is  not  a 
citizen  of  Missouri,  in  the  sense  in  which  that  word  is  used  in  the 
Constitution,  and  that  the  Circuit  Court  of  the  United  States,  for  that 
.reason,  had  no  jurisdiction  in  the  case,  and  could  give  no  judgment 
in  it.  Its  judgment  for  the  defendant  must,  consequently,  be  reversed, 
and  a  mandate  issued  directing  the  suit  to  be  dismissed  for  want  of 
jurisdiction. 


EXTRACT  FROM 

JUSTICE  MCLEAN'S   DISSENTING  OPINION. 

I  will  now  consider  the  relation  which  the  federal  government 
bears  to  slavery  in  the  States: — 

Slavery  is  emphatically  a  State  institution.  In  the  ninth  section 
of  the  first  article  of  the  Constitution  it  is  provided  "that  the  migra- 
tion or  importation  of  such  persons  as  any  of  the  States  now  existing 
shall  think  proper  to  admit  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  1808,  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person." 

In  the  convention  it  was  proposed  by  a  committee  of  eleven  to 
limit  the  importation  of  slaves  to  the  year  1800,  when  Mr.  Pinckney 
moved  to  extend  the  time  to  the  year  1808.  This  motion  was  car- 
ried, New  Hampshire,  Massachusetts,  Connecticut,  Maryland,  North 
Carolina,  South  Carolina,  and  Georgia  voting  in  the  affirmative,  and 
New  Jersey,  Pennsylvania,  and  Virginia  in  the  negative.  In  oppo- 
sition to  the  motion  Mr.  Madison  said:  "Twenty  years  will  produce 
all  the  mischief  that  can  be  apprehended  from  the  liberty  to  import 


358  THE    DRED    SCOTT    DECISION. 

slaves.  So  long  a  term  will  be  more  dishonorable  to  the  American 
character  than  to  say  nothing  about  it  in  the  Constitution." — Madison 
Papers. 

The  provision  in  regard  to  the  slave  trade  shows  clearly  that  Con- 
gress considered  slavery  a  State  institution,  to  be  continued  and  regu- 
lated by  its  individual  sovereignty,  and  to  conciliate  that  interest  the 
slave  trade  was  continued  twenty  years,  not  as  a  general  measure, 
but  for  the  "benefit  of  such  States  as  shall  think  proper  to  encourage 
it." 

In  the  case  of  Groves  vs.  Slaughter  (15  Peters  449;  14  Curtis  137) 
Messrs.  Clay  and  Webster  contended  that,  under  the  commercial 
power,  Congress  had  a  right  to  regulate  the  slave  trade  among  the 
several  States,  but  the  court  held  that  Congress  had  no  po\vrer  to 
interfere  with  slavery  as  it  exists  in  the  States,  or  to  regulate  what  is 
called  the  slave  trade  among  them.  If  this  trade  were  subject  to  the 
commercial  power,  it  would  follow  that  Congress  could  abolish  or 
establish  slavery  in  every  State  of  the  Union. 

The  only  connection  which  the  federal  government  holds  with 
slaves  in  a  State  arises  from  that  provision  of  the  Constitution  which 
declares  that  "  no  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service 
or  labor  may  be  due." 

This  being  a  fundamental  law  of  the  federal  government,  it  rests 
mainly  for  its  execution,  as  has  been  held,  on  the  judicial  power  of 
the  Union,  and,  so  far  as  the  rendition  of  fugitives  from  labor  has 
become  a  subject  of  judicial  action,  the  federal  obligation  has  been 
faithfully  discharged. 

In  the  formation  of  the  Federal  Constitution  care  was  taken  to 
confer  no  power  on  the  federal  government  to  interfere  with  this 
institution  in  the  States.  In  the  provision  respecting  the  slave  trade, 
in  fixing  the  ratio  of  representation  and  providing  for  the  reclama- 
tion of  fugitives  from  labor,  slaves  were  referred  to  as  persons,  and 
in  no  other  respect  are  they  considered  in  the  Constitution. 

We  need  not  refer  to  the  mercenary  spirit  which  introduced  the 
infamous  traffic  in  slaves  to  show  the  degradation  of  negro  slavery 
in  our  country.  This  system  was  imposed  upon  our  colonial  settle- 
ments by  the  mother  country,  and  it  is  due  to  truth  to  say  that  the 
commercial  colonies  and  States  were  chiefly  engaged  in  the  traffic, 


THE    DRED    SCOTT    DECISION.  359 

But  we  know,  as  a  historical  fact,  that  James  Madison,  that  great  and 
good  man,  a  leading  member  in  the  federal  convention,  was  solic- 
itous to  guard  the  language  of  that  instrument  so  as  not  to  convey 
the  idea  that  there  could  be  property  in  man. 

I  prefer  the  lights  of  Madison,  Hamilton,  and  Jay,  as  a  means  of 
construing  the  Constitution  in  all  its  bearings,  rather  than  to  look 
behind  that  period  into  a  traffic  which  is  now  declared  to  be  piracy, 
and  punished  with  death  by  Christian  nations.  I  do  not  like  to  draw 
the  sources  of  our  domestic  relations  from  so  dark  a  ground.  Our 
independence  was  a  great  epoch  in  the  history  of  freedom;  and,  while 
I  admit  the  government  was  not  made  especially  for  the  colored  race, 
yet  many  of  them  were  citizens  of  the  New  England  States,  and  exer- 
cised the  rights  of  suffrage  when  the  Constitution  was  adopted,  and 
it  was  not  doubted  by  any  intelligent  person  that  its  tendencies  would 
greatly  ameliorate  their  condition. 

Many  of  the  States,  on  the  adoption  of  the  Constitution,  or  shortly 
afterward,  took  measures  to  abolish  slavery  within  their  respective 
jurisdictions,  and  it  is  a  well-known  fact  that  a  belief  was  cherished 
by  the  leading  men,  South  as  well  as  North,  that  the  institution  of 
slavery  would  gradually  decline,  until  it  would  become  extinct.  The 
increased  value  of  slave  labor,  in  the  culture  of  cotton  and  sugar, 
prevented  the  realization  of  this  expectation.  Like  all  other  com- 
munities and  States,  the  South  were  influenced  by  what  they  con- 
sidered to  be  their  own  interests. 

But  if  we  are  to  turn  our  attention  to  the  dark  ages  of  the  world, 
why  confine  our  view  to  colored  slavery?  On  the  same  principles 
white  men  were  made  slaves.  All  slavery  has  its  origin  in  power, 
and  is  against  right. 


EXTRACT  FROM 

JUSTICE  CURTIS'S  DISSENTING  OPINION. 

Under  the  allegations  contained  in  this  plea,  and  admitted  by  the 
demurrer,  the  question  is  whether  any  person  of  African  descent, 
whose  ancestors  were  sold  as  slaves  in  the  United  States,  can  be  a 
citizen  of  the  United  States.  If  any  such  person  can  be  a  citizen,  this 
plaintiff  has  the  right  to  the  judgment  of  the  court  that  he  is  so,  for 
no  cause  is  shown  by  the  plea  why  he  is  not  so,  except  his  descent 
and  the  slavery  of  his  ancestors. 


£60  THE    DRED   SCOTT    DECIStOtf. 

The  first  section  of  the  second  article  of  the  Constitution  uses  the 
language,  "a  citizen  of  the  United  States  at  the  time  of  the  adoption 
of  the  Constitution."  One  mode  of  approaching  this  question  is  to 
inquire  who  were  citizens  of  the  United  States  at  the  time  of  the 
adoption  of  the  Constitution. 

Citizens  of  the  United  States  at  the  time  of  the  adoption  of  the 
Constitution  can  have  been  no  other  than  citizens  of  the  United  States 
under  the  Confederation.  By  the  Articles  of  Confederation  a  govern- 
ment was  organized,  the  style  whereof  was,  "The  United  States  of 
America."  This  government  was  in  existence  when  the  Constitution 
was  framed  and  proposed  for  adoption,  and  was  to  be  superseded  by 
the  new  government  of  the  United  States  of  America,  organized  under 
the  Constitution.  When,  therefore,  the  Constitution  speaks  of  citi- 
zenship of  the  United  States  existing  at  the  time  of  the  adoption  of 
the  Constitution,  it  must  necessarily  refer  to  citizenship  under  the 
government  which  existed  prior  to  and  at  the  time  of  such  adoption. 

Without  going  into  any  question  concerning  the  powers  of  the 
Confederation  to  govern  the  territory  of  the  United  States  out  of  the 
limits  of  the  States,  and,  consequently,  to  sustain  the  relation  of  gov- 
ernment and  citizen  in  respect  to  the  inhabitants  of  such  territory,  it 
may  safely  be  said  that  the  citizens  of  the  several  States  were  citizens 
of  the  United  States  under  the  Confederation. 

That  government  was  simply  a  confederacy  of  the  several  States, 
possessing  a  few  defined  powers  over  subjects  of  general  concern, 
each  State  retaining  every  power,  jurisdiction,  and  right  not  expressly 
delegated  to  the  United  States  in  Congress  assembled.  And  no 
power  was  thus  delegated  to  the  government  of  the  Confederation, 
to  act  on  any  question  of  citizenship,  or  to  make  any  rules  in  respect 
thereto.  The  whole  matter  was  left  to  stand  upon  the  action  of  the 
several  States,  and  to  the  natural  consequence  of  such  action,  that 
the  citizens  of  each  State  should  be  citizens  of  that  Confederacy  into 
which  that  State  had  entered,  the  style  whereof  was,  "The  United 
States  of  America." 

To  determine  whether  any  free  persons  descended  from  Africans 
held  in  slavery  were  citizens  of  the  United  States  under  the  Confed- 
eration, and,  consequently,  at  the  time  of  the  adoption  of  the  Consti- 
tution of  the  United  States,  it  is  only  necessary  to  know  whether  any 
such  persons  were  citizens  of  either  of  the  States  under  the  Confed- 
eration at  the  time  of  the  adoption  of  the  Constitution. 

Of  this  there  can  be  no  doubt.    At  the  time  of  the  ratification  of 


THE    DRED    SCOTT    DECISION.  361 

the  Articles  of  Confederation,  all  free  native-born  inhabitants  of  the 
States  of  New  Hampshire,  Massachusetts,  New  York,  New  Jersey, 
and  North  Carolina,  though  descended  from  African  slaves,  were  not 
only  citizens  of  those  States,  but  such  of  them  as  had  the  other  nec- 
essary qualifications  possessed  the  franchise  of  electors  on  equal  terms 
with  other  citizens. 

The  Supreme  Court  of  North  Carolina,  in  the  case  of  the  State  vs. 
Manuel  (4  Dev.  and  Bat.  20),  has  declared  the  law  of  that  State  on 
this  subject,  in  terms  which  I  believe  to  be  as  sound  law  in  the  other 
States  I  have  enumerated,  as  it  was  in  North  Carolina. 

"According  to  the  laws  of  this  State,"  says  Judge  Gaston,  in  deliv- 
ering the  opinion  of  the  court,  "all  human  beings  within  it  who  are 
not  slaves  fall  within  one  of  two  classes.  Whatever  distinctions  may 
have  existed  in  the  Roman  laws  between  citizens  and  free  inhabitants, 
they  are  unknown  to  our  institutions.  Before  our  Revolution  all  free 
persons  born  within  the  dominions  of  the  king  of  Great  Britain,  what- 
ever their  color  or  complexion,  were  native-born  British  subjects. 
Those  born  out  of  his  allegiance  were  aliens.  Slavery  did  not  exist 
in  England,  but  it  did  in  the  British  colonies.  Slaves  were  not  in 
legal  parlance  persons,  but  property.  The  moment  the  incapacity, 
the  disqualification  of  slavery,  was  removed,  they  became  persons, 
and  were  then  either  British  subjects,  or  not  British  subjects,  accord- 
ing as  they  were  or  were  not  born  within  the  allegiance  of  the  British 
king.  Upon  the  Revolution  no  other  change  took  place  in  the  laws 
of  North  Carolina  than  was  consequent  on  the  transition  from  a  col- 
ony dependent  on  a  European  king  to  a  free  and  sovereign  State. 
Slaves  remained  slaves.  British  subjects  in  North  Carolina  became 
North  Carolina  freemen.  Foreigners,  until  made  members  of  the 
State,  remained  aliens.  Slaves  manumitted  here  became  freemen, 
and,  therefore,  if  born  within  North  Carolina,  are  citizens  of  North 
Carolina,  and  all  free  persons  born  within  the  State  are  born  citizens 
of  the  State.  The  Constitution  extended  the  elective  franchise  to 
every  freeman  who  had  arrived  at  the  age  of  twenty-one,  and  paid  a 
public  tax,  and  it  is  a  matter  of  universal  notoriety  that,  under  it,  free 
persons,  without  regard  to  color,  claimed  and  exercised  the  franchise 
until  it  was  taken  from  free  men  of  color  a  few  years  since  by  our 
amended  Constitution." 

In  the  State  vs.  Newcomb  (5  IredelPs  R.  253),  decided  in  1844, 
the  same  court  referred  to  this  case  of  the  State  vs.  Manuel,  and  said: 
"That  case  underwent  a  very  laborious  investigation,  both  by  the 


362  THE    DRED   SCOTT    DECISION. 

bar  and  the  bench.  The  case  was  brought  here  by  appeal,  and  was 
felt  to  be  one  of  great  importance  in  principle.  It  was  considered 
with  an  anxiety  and  care  worthy  of  the  principle  involved,  and  which 
give  it  a  controlling  influence  and  authority  on  all  questions  of  a 
similar  character." 

An  argument  from  speculative  premises,  however  well  chosen, 
that  the  then  state  of  opinion  in  the  commonwealth  of  Massachusetts 
was  not  consistent  with  the  natural  rights  of  people  of  color  who  were 
born  on  that  soil,  and  that  they  were  not,  by  the  constitution  of  1780 
of  that  State,  admitted  to  the  condition  of  citizens,  would  be  received 
with  surprise  by  the  people  of  that  State  who  know  their  own  political 
history.  It  is  true,  beyond  all  controversy,  that  persons  of  color 
descended  from  African  slaves  were  by  that  constitution  made  citi- 
zens of  the  State,  and  such  of  them  as  have  had  the  necessary  qual- 
ifications have  held  and  exercised  the  elective  franchise  as  citizens 
from  that  time  to  the  present.  (See  Com.  vs.  Aves,  18  Pick.  R.  210.) 

The  constitution  of  New  Hampshire  conferred  the  elective  fran- 
chise upon  "every  inhabitant  of  the  State  having  the  necessary  quali- 
fications," of  which  color  or  descent  was  not  one. 

The  constitution  of  New  York  gave  the  right  to  vote  to  "  every 
male  inhabitant  who  shall  have  resided,"  etc.,  making  no  discrimina- 
tion between  free  colored  persons  and  others.  (See  Con.  of  N.  Y., 
Art  2,  Rev.  Stats,  of  N.  Y.,  vol.  i,  p.  126.) 

That  of  New  Jersey,  to  "all  inhabitants  of  this  colony,  of  full  age, 
who  are  worth  £50  proclamation  money,  clear  estate." 

New  York,  by  its  Constitution  of  1820,  required  colored  persons 
to  have  some  qualifications  as  prerequisites  for  voting  which  white 
persons  need  not  possess.  And  New  Jersey,  by  its  present  Consti- 
tution, restricts  the  right  to  vote  to  white  male  citizens.  But  these 
changes  can  have  no  other  effect  upon  the  present  inquiry  except  to 
show  that,  before  they  were  made,  no  such  restrictions  existed,  and 
colored,  in  common  with  white  persons,  were  not  only  citizens  of 
those  States,  but  entitled  to  the  elective  franchise  on  the  same  quali- 
fications as  white  persons,  as  they  now  are  in  New  Hampshire  and 
Massachusetts.  I  shall  not  enter  into  an  examination  of  the  existing 
opinions  of  that  period  respecting  the  African  race,  nor  into  any  dis- 
cussion concerning  the  meaning  of  those  who  asserted,  in  the  Dec- 
laration of  Independence,  that  all  men  are  created  equal;  that  they 
are  endowed  by  their  Creator  with  certain  inalienable  rights;  that 
among  these  are  life,  liberty,  and  the  pursuit  of  happiness.  My  own 


THE    DRED    SCOTT    DECISION.  363 

opinion  is  that  a  calm  comparison  of  these  assertions  of  universal 
abstract  truths,  and  of  their  own  individual  opinions  and  acts,  would 
not  leave  these  men  under  any  reproach  of  inconsistency;  that  the 
great  truths  they  asserted  on  that  solemn  occasion  they  were  ready 
and  anxious  to  make  ^effectual  wherever  a  necessary  regard  to  cir- 
cumstances, which  no  statesman  can  disregard  without  producing 
more  evil  than  good,  would  allow;  and  that  it  would  not  be  just  to 
them,  nor  true  in  itself,  to  allege  that  they  intended  to  say  that  the 
Creator  of  all  men  had  endowed  the  white  race  exclusively  with  the 
great  natural  rights  which  the  Declaration  of  Independence  asserts. 
But  this  is  not  the  place  to  vindicate  their  memory.  As  I  conceive, 
we  should  deal  here,  not  with  such  disputes,  if  there  can  be  a  dispute 
concerning  this  subject,  but  with  those  substantial  facts  evinced  by 
the  written  constitutions  of  States,  and  by  the  notorious  practice 
under  them.  And  they  show,  in  a  manner  which  no  argument  can 
obscure,  that  in  some  of  the  original  thirteen  States  free  colored  per- 
sons, before  and  at  the  time  of  the  formation  of  the  Constitution,  were 
citizens  of  those  States. 

The  fourth  of  the  fundamental  articles  of  the  Confederation  was  as 
follows:  "The  free  inhabitants  of  each  of  these  States,  paupers,  vaga- 
bonds, and  fugitives  from  justice  excepted,  shall  be  entitled  to  all  the 
privileges  and  immunities  of  free  citizens  in  the  several  States." 

The  fact  that  free  persons  of  color  were  citizens  of  some  of  the 
several  States,  and  the  consequence,  that  this  fourth  article  of  the 
Confederation  would  have  the  effect  to  confer  on  such  persons  the 
privileges  and  immunities  of  general  citizenship,  were  not  only  known 
to  those  who  framed  and  adopted  those  articles,  but  the  evidence  is 
decisive  that  the  fourth  article  was  intended  to  have  that  effect,  and 
that  more  restricted  language,  which  would  have  excluded  such  per- 
sons, was  deliberately  and  purposely  rejected. 

On  the  25th  of  June,  1778,  the  Articles  of  Confederation  being 
under  consideration  by  the  Congress,  the  delegates  from  South  Caro- 
lina moved  to  amend  this  fourth  article,  by  inserting  after  the  word 
"free,"  and  before  the  word  "inhabitants,"  the  word  "white,"  so 
that  the  privileges  and  immunities  of  general  citizenship  would  be 
secured  only  to  white  persons.  Two  States  voted  for  the  amend- 
ment, eight  States  against  it,  and  the  vote  of  one  State  was  divided. 
The  language  of  the  article  stood  unchanged,  and  both  by  its  terms 
of  inclusion,  "free  inhabitants,"  and  the  strong  implication  from  its 
terms  of  exclusion,  "paupers,  vagabonds,  and  fugitives  from  justice," 


364  ^E   DRE.D   SCOTT    DECISION. 

who  alone  were  excepted,  it  is  clear  that  under  the  Confederation, 
and  at  the  time  of  the  adoption  of  the  Constitution,  free  colored  per- 
sons of  African  descent  might  be,  and,  by  reason  of  their  citizenship 
in  certain  States,  were  entitled  to  the  privileges  and  immunities  of 
general  citizenship  of  the  United  States. 

Did  the  Constitution  of  the  United  States  deprive  them  or  their 
descendants  of  citizenship  ? 

That  Constitution  was  ordained  and  established  by  the  people  of 
the  United  States,  through  the  action,  in  each  State,  of  those  persons 
who  were  qualified  by  its  laws  to  act  thereon,  in  behalf  of  themselves 
and  all  other  citizens  of  that  State.  In  some  of  the  States,  as  we  have 
seen,  colored  persons  were  among  those  qualified  by  law  to  act  on 
this  subject.  These  colored  persons  were  not  only  included  in  the 
body  of  "the  people  of  the  United  States,"  by  whom  the  Constitution 
was  ordained  and  established,  but  in  at  least  five  of  the  States  they 
had  the  power  to  act,  and  doubtless  did  act,  by  their  suffrages,  upon 
the  question  of  its  adoption.  It  would  be  strange  if  we  were  to  find 
in  that  instrument  anything  which  deprived  of  their  citizenship  any 
part  of  the  people  of  the  United  States  who  were  among  those  by 
whom  it  was  established. 

I  can  find  nothing  in  the  Constitution  which,  proprio  vigore, 
deprives  of  their  citizenship  any  class  of  persons  who  were  citizens 
of  the  United  States  at  the  time  of  its  adoption,  or  who  should  be 
native-born  citizens  of  any  State  after  its  adoption,  nor  any  power 
enabling  Congress  to  disfranchise  persons  born  on  the  soil  of  any 
State,  and  entitled  to  citizenship  of  such  State  by  its  Constitution  and 
laws.  And  my  opinion  is  that,  under  the  Constitution  of  the  United 
States,  every  free  person  born  on  the  soil  of  a  State,  who  is  a  citizen 
of  that  State  by  force  of  its  Constitution  or  laws,  is  also  a  citizen  of 
the  United  States.  .  .  . 

It  has  been  often  asserted  that  the  Constitution  was  made  exclu- 
sively by  and  for  the  white  race.  It  has  already  been  shown  that  in 
five  of  the  thirteen  original  States  colored  persons  then  possessed  the 
elective  franchise,  and  were  among  those  by  whom  the  Constitution 
was  ordained  and  established.  If  so,  it  is  not  true,  in  point  of  fact, 
that  the  Constitution  was  made  exclusively  by  the  white  race.  And 
that  it  was  made  exclusively  for  the  white  race  is,  in  my  opinion,  not 
only  any  assumption  not  warranted  by  anything  in  the  Constitution, 
but  contradicted  by  its  opening  declaration,  that  it  was  ordained  and 
established  by  the  people  of  the  United  States,  for  themselves  and 


THE    DRED   SCOTT    DECISION.  365 

their  posterity.  And  as  free  colored  persons  were  then  citizens  of  at 
least  five  States,  and  so  in  every  sense  part  of  the  people  of  the  United 
States,  they  were  among  those  for  whom  and  whose  posterity  the 
Constitution  was  ordained  and  established.  .  .  . 

The  conclusions  at  which  I  have  arrived  on  this  part  of  the  case 
are: — 

First,  that  the  free  native-born  citizens  of  each  State  are  citizens 
of  the  United  States. 

Second,  that  as  free  colored  persons  born  within  some  of  the 
States  are  citizens  of  those  States,  such  persons  are  also  citizens  of 
the  United  States. 

Third,  that  every  such  citizen,  residing  in  any  State,  has  the 
right  to  sue,  and  is  liable  to  be  sued,  in  the  federal  courts  as  a  citizen 
of  that  State  in  which  he  resides. 

fourth,  that  as  the  plea  to  the  jurisdiction  in  this  case  shows 
no  facts,  except  that  the  plaintiff  was  of  African  descent,  and  his 
ancestors  were  sold  as  slaves,  and  as  these  facts  are  not  inconsistent 
with  his  citizenship  of  the  United  States,  and  his  residence  in  the 
State  of  Missouri,  the  plea  to  the  jurisdiction  was  bad,  and  the  judg- 
ment of  the  Circuit  Court  overruling  it  was  correct. 

I  dissent,  therefore,  from  that  part  of  the  opinion  of  the  majority 
of  the  court  in  which  it  is  held  that  a  person  of  African  descent  cannot 
be  a  citizen  of  the  United  States;  and  I  regret  I  must  go  further, 
and  dissent  both  from  what  I  deem  their  assumption  of  authority  to 
examine  the  constitutionality  of  the  act  of  Congress  commonly  called 
the  Missouri  Compromise  Act,  and  the  grounds  and  conclusions  an- 
nounced in  their  opinion. 


APPENDIX  D. 


SUPREME  COURT  OF  THE  UNITED  STATES 

No.  143. — OCTOBER  TERM,  1891. 


The  Rector,  Church  Wardens,  and  Vestry-  \  In  error  to  the  Circuit 
men  of  the  Church  of  the  Holy  Trinity,  I  Court  of  the  United 
Plaintiffs  in  Error,  >  States  for  the  South- 

vs.  A      ern  District  of  New 

The  United  States.  /       York. 

[February  29,  1892.] 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

Plaintiff  in  error  is  a  corporation,  duly  organized  and  incorporated 
as  a  religious  society  under  the  laws  of  the  State  of  New  York.  E. 
Walpole  Warren  was,  prior  to  September,  1887,  an  alien  residing  in 
England.  In  that  month  the  plaintiff  in  error  made  a  contract  with 
him,  by  which  he  was  to  remove  to  the  city  of  New  York  and  enter 
into  its  service  as  rector  and  pastor;  and,  in  pursuance  of  such  con- 
tract, Warren  did  so  remove  and  enter  upon  such  service.  It  is 
claimed  by  the  United  States  that  this  contract  on  the  part  of  the  plain- 
tiff in  error  was  forbidden  by  chapter  164,  23  Stat.  332,  and  an  action 
was  commenced  to  recover  the  penalty  prescribed  by  that  act.  The 
Circuit  Court  held  that  the  contract  was  within  the  prohibition  of  the 
statute,  and  rendered  judgment  accordingly  (36  Fed.  Rep.  303);  and 
the  single  question  presented  for  our  determination  is  whether  it  erred 
in  that  conclusion. 

The  first  section  describes  the  act  forbidden,  and  is  in  these  words: — 

"Be  if  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  from  and  after 
the  passage  of  this  act  it  shall  be  unlawful  for  any  person,  company, 
partnership,  or  corporation,  in  any  manner  whatsoever  to  repay  the 

(366) 


THE    "CHRISTIAN   NATION"    DECISION.  367 

transportation,  or  in  any  way  assist  or  encourage  the  importation  or 
migration  of  any  alien  or  aliens,  any  foreigner  or  foreigners,  into  the 
United  States,  its  Territories,  or  the  District  of  Columbia,  under  con- 
tract or  agreement,  parol  or  special,  express  or  implied,  made  previous 
to  the  importation  or  migration  of  such  alien  or  aliens,  foreigner  or 
foreigners,  to  perform  labor  or  service  of  any  kind  in  the  "United 
States,  its  Territories,  or  the  District  of  Columbia." 

It  must  be  conceded  that  the  act  of  the  corporation  is  within  the 
letter  of  this  section,  for  the  relation  of  rector  to  his  church  is  one  of 
service,  and  implies  labor  on  the  one  side  with  compensation  on  the 
other.  Not  only  are  the  general  words  labor  and  service  both  used, 
but  also,  as  it  were,  to  guard  against  any  narrow  interpretation  and 
emphasize  a  breadth  of  meaning,  to  them  is  added  ' 'of  any  kind;" 
and,  further,  as  noticed  by  the  Circuit  Judge  in  his  opinion,  the  fifth 
section,  which  makes  specific  exceptions,  among  them  professional 
actors,  artists,  lecturers,  singers,  and  domestic  servants,  strengthens 
the  idea  that  every  kind  of  labor  and  service  was  intended  to  be 
reached  by  the  first  section.  While  there  is  great  force  to  this  reason- 
ing, we  cannot  think  Congress  intended  to  denounce  with  penalties  a 
transaction  like  that  in  the  present  case.  It  is  a  familiar  rule  that  a 
thing  may  be  within  the  letter  of  the  statute  and  yet  not  within  the 
statute,  because  not  within  the  spirit,  nor  within  the  intention  of  its 
makers.  This  has  been  often  asserted,  and  the  reports  are  full  of 
cases  illustrating  its  application.  This  is  not  the  substitution 
of  the  will  of  the  judge  for  that  of  the  legislator,  for  frequently 
words  of  general  meaning  are  used  in  a  statute,  words  broad  enough 
to  include  an  act  in  question,  and  yet  a  consideration  of  the  whole 
legislation,  or  of  the  circumstances  surrounding  its  enactment,  or 
of  the  absurd  results  which  follow  from  giving  such  broad  meaning 
to  the  words,  makes  it  unreasonable  to  believe  that  the  legislator 
intended  to  include  the  particular  act.  As  said  in  Plowden,  205: 
"From  which  cases,  it  appears  that  the  sages  of  the  law  heretofore 
have  construed  statutes  quite  contrary  to  the  letter  in  some  appear- 
ance, and  those  statutes  which  comprehend  all  things  in  the  letter  they 
have  expounded  to  extend  to  but  some  things,  and  those  which  gener- 
ally prohibit  all  people  from  doing  such  an  act,  they  have  interpreted 
to  permit  some  people  to  do  it,  and  those  which  include  every  person 
in  the  letter,  they  have  adjudged  to  reach  to  some  persons  only,  which 
expositions  have  always  been  founded  upon  the  intent  of  the  Legisla- 
ture, which  they  have  collected  sometimes  by  considering  the  cause 
and  necessity  of  making  the  act,  sometimes  by  comparing  one  part  of 
the  act  with  another,  and  sometimes  by  foreign  circumstances," 


368  THE    "CHRISTIAN   NATION"    DECISION. 

In  Pier  Co.  vs.  Hannam  (3  B.  &  Aid.  266),  C.  J.  Abbott  quotes  from 
Lord  Coke  as  follows:  "Acts  of  Parliament  are  to  be  so  construed  as 
no  man  that  is  innocent  or  free  from  injury  or  wrong  be,  by  a  literal 
construction,  punished  or  endangered."  In  the  case  of  the  State  vs. 
Clark  (5  Dutcher  96,  99),  it  appeared  that  an  act  had  been  passed 
making  it  a  misdemeanor  to  willfully  break  down  a  fence  in  the  pos- 
session of  another  person.  Clark  was  indicted  under  that  statute. 
The  defense  was  that  the  act  of  breaking  down  the  fence,  though 
willful,  was  in  the  exercise  of  a  legal  right  to  go  upon  his  own  lands. 
The  trial  court  rejected  the  testimony  offered  to  sustain  the  defense, 
and  the  Supreme  Court  held  that  this  ruling  was  error.  In  its  opinion 
the  court  used  this  language:  "The  act  of  1855,  in  terms,  makes  the 
willful  opening,  breaking  down,  or  injuring  of  any  fences  belonging  to 
or  in  possession  of  any  other  person  a  misdemeanor.  In  what  sense 
is  the  term  willful  used  ?  In  common  parlance,  willful  is  used  in  the 
sense  of  intentional,  as  distinguished  from  accidental  or  involuntary. 
Whatever  one  does  intentionally  he  does  willfully.  Is  it  used  in  that 
sense  in  this  act  ?  Did  the  Legislature  intend  to  make  the  intentional 
opening  of  a  fence  for  the  purpose  of  going  upon  the  land  of  another, 
indictable  if  done  by  permission  or  for  a  lawful  purpose?  .  .  . 
We  cannot  suppose  such  to  have  been  the  actual  intent.  To  adopt 
such  a  construction  would  put  a  stop  to  the  ordinary  business  of  life. 
The  language  of  the  act,  if  construed  literally,  evidently  .leads  to  an 
absurd  result.  If  a  literal  construction  of  the  words  of  a  statute  be 
absurd,  the  act  must  be  so  construed  as  to  avoid  the  absurdity.  The 
court  must  restrain  the  words.  The  object  designed  to  be  reached  by 
the  act  must  limit  and  control  the  literal  import  of  the  terms  and 
phrases  employed."  In  United  States  vs.  Kirby  (7  Wall.  482,  486), 
the  defendants  were  indicted  for  the  violation  of  an  act  of  Congress, 
providing  "that  if  any  person  shall  knowingly  and  willfully  obstruct  or 
retard  the  passage  of  the  mail,  or  of  any  driver  or  carrier,  or  of  any 
horse  or  carriage  carrying  the  same,  he  shall,  upon  conviction,  for 
every  such  offense  pay  a  fine  not  exceeding  $100."  The  specific 
charge  was  that  the  defendants  knowingly  and  willfully  retarded  the 
passage  of  one  Farris,  a  carrier  of  the  mail,  while  engaged  in  the 
performance  of  his  duty,  and  also  in  like  manner  retarded  the  steam- 
boat General  Buell,  at  that  time  engaged  in  carrying  the  mail.  To 
this  indictment  the  defendants  pleaded  specially  that  Farris  had  been 
indicted  for  murder  by  a  court  of  competent  authority  in  Kentucky; 
that  a  bench  warrant  had  been  issued  and  placed  in  the  hands  of  the 


THE  "CHRISTIAN  NATION"  DECISION.  369 

defendant  Kirby,  the  sheriff  of  the  county,  commanding  him  to  arrest 
Farris  and  bring  him  before  the  court  to  answer  to  the  indictment; 
and  that  in  obedience  to  this  warrant,  he  and  the  other  defendants,  as 
his  posse,  entered  upon  the  steamboat  General  Buell  and  arrested 
Farris,  and  used  only  such  force  as  was  necessary  to  accomplish  that 
arrest.  The  question  as  to  the  sufficiency  of  this  plea  was  certified  to 
this  court,  and  it  was  held  that  the  arrest  of  Farris  upon  the  warrant 
from  the  State  court  was  not  an  obstruction  of  the  mail,  or  the  retard- 
ing of  the  passage  of  a  carrier  of  the  mail,  within  the  meaning  of  the 
act.  In  its  opinion  the  court  says:  "All  laws  should  receive  a  sensible 
construction.  General  terms  should  be  so  limited  in  their  application 
as  not  to  lead  to  injustice,  oppression,  or  an  absurd  consequence.  It 
will  always,  therefore,  be  presumed  that  the  Legislature  intended 
exceptions  to  its  language  which  would  avoid  results  of  this  character. 
The  reason  of  the  law  in  such  cases  should  prevail  over  its  letter. 
The  common  sense  of  man  approves  the  judgment  mentioned  by 
Puffendorf,  that  the  Bolognian  law  which  enacted  'that  whoever  drew 
blood  in  the  streets  should  be  punished  with  the  utmost  severity,'  did 
not  extend  to  the  surgeon  who  opened  the  vein  of  a  person  that  fell 
down  in  the  street  in  a  fit.  The  same  common  sense  accepts  the  rul- 
ing, cited  by  Plowden,  that  the  statue  of  ist  Edward  II,  which  enacts 
that  a  prisoner  who  breaks  prison  shall  be  guilty  of  felony,  does  not 
extend  to  a  prisoner  who  breaks  out  when  the  prison  is  on  fire,  '  for 
he  is  not  to  be  hanged  because  he  would  not  stay  to  be  burnt.'  And 
we  think  a  like  common  sense  will  sanction  the  ruling  we  make,  that 
the  act  of  Congress  which  punishes  the  obstruction  or  retarding  of 
the  passage  of  the  mail,  or  of  its  carrier,  does  not  apply  to  a  case  of 
temporary  detention  of  the  mail  caused  by  the  arrest  of  the  carrier 
upon  an  indictment  for  murder."  The  following  cases  may  also  be 
cited:  Henry  vs.  Tilson  (17  Vt.  479);  Ryegate  vs.  Wardsboro  (30  Vt. 
746);  Ex  parte  Ellis  (u  Cal.  220);  Ingraham  vs.  Speed  (30  Miss.  410); 
Jackson  vs.  Collins  (3  Cowen  89);  People  vs.  Insurance  Company  (15 
Johns  358);  Burch  vs.  Newbury  (10  N.  Y.  374);  People  ex  rel.  vs. 
Comrs.,  etc.  (95  N.  Y.  554,  558);  People  ex  rel.  vs.  Lacombe  (99  N.  Y. 
43,  49);  Canal  Co.  vs.  Railroad  Co.  (4  Gill  &  Johnson,  152);  Osgood 
vs.  Breed  (12  Mass.  525,  530);  Wilbur  vs.  Crane  (13  Pick.  284);  Gates 
vs.  National  Bank  (100  U.  S.  239). 

Among  other  things  which  may  be  considered  in  determining  the 
intent  of  the  Legislature  is  the  title  of  the  act.  We  do  not  mean  that 
it  may  be  used  to  add  or  to  take  from  the  body  of  the  statute  (Hadden 


370  THE  '  'CHRISTIAN  NATION     DECISION. 

vs.  The  Collector,  5  Wall.  107) ,  but  it  may  help  to  interpret  its  mean- 
ing. In  the  case  of  United  States  vs.  Fisher  (2  Cranch.  358,  386), 
Chief  Justice  Marshall  said:  "On  the  influence  which  the  title  ought 
to  have  in  construing  the  enacting  clauses  much  has  been  said;  and 
yet  it  is  not  easy  to  discern  the  point  of  difference  between  the  oppos- 
ing counsel  in  this  respect.  Neither  party  contends  that  the  title  of 
an  act  can  control  plain  words  in  the  body  of  the  statute;  and  neither 
denies  that,  taken  with  other  parts,  it  may  assist  in  removing  ambig- 
uities. Wliere  the  intent  is  plain,  nothing  is  left  to  construction. 
Wliere  the  mind  labors  to  discover  the  design  of  the  Legislature,  it 
seizes  everything  from  which  aid  can  be  derived;  and  in  such  case 
the  title  claims  a  degree  of  notice,  and  will  have  its  due  share  of  con- 
sideration; "  and  in  the  case  of  United  States  vs.  Palmer  (3  Wheaton 
610,  631),  the  same  judge  applied  the  doctrine  in  this  way:  "  The 
words  of  the  section  are  in  terms  of  unlimited  extent.  The  words 
'  any  person  or  persons '  are  broad  enough  to  comprehend  every 
human  being.  But  general  words  must  not  only  be  limited  to  cases 
within  the  jurisdiction  of  the  State,  but  also  to  those  objects  to  which 
the  Legislature  intended  to  apply  them.  Did  the  Legislature  intend 
to  apply  these  words  to  the  subjects  of  a  foreign  power,  who  in  a 
foreign  ship  may  commit  murder  or  robbery  on  the  high  seas  ?  The 
title  of  an  act  cannot  control  its  words,  but  may  furnish  some  aid  in 
showing  what  was  in  the  mind  of  the  Legislature.  The  title  of  this 
act  is,  'An  act  for  the  punishment  of  certain  crimes  against  the  United 
States.'  It  would  seem  that  offenses  against  the  United  States,  not 
offenses  against  the  human  race,  were  the  crimes  which  the  Legis- 
lature intended  by  this  law  to  punish." 

It  will  be  seen  that  words  as  general  as  those  used  in  the  first  sec- 
tion of  this  act  were  by  that  decision  limited,  and  the  intent  of  Con- 
gress with  respect  to  the  act  was  gathered  partially,  at  least,  from  its 
title.  Now,  the  title  of  this  act  is, '  'An  act  to  prohibit  the  importation 
and  migration  of  foreigners  and  aliens  under  contract  or  agreement 
to  perform  labor  in  the  United  States,  its  Territories,  and  the  District 
of  Columbia."  Obviously  the  thought  expressed  in  this  reaches  only 
to  the  work  of  the  manual  laborer,  as  distinguished  from  that  of  the 
professional  man.  No  one  reading  such  a  title  would  suppose  that 
Congress  had  in  its  mind  any  purpose  of  staying  the  coming  into  this 
country  of  ministers  of  the  gospel,  or,  indeed,  of  any  class  whose  toil 
is  that  of  the  brain.  The  common  understanding  of  the  terms  labor 
and  laborers  does  not  include  .preaching  and  preachers;  and  it  is  to 


THE  "CHRISTIAN  NATION'     DECISION.  371 

be  assumed  that  words  and  phrases  are  used  in  their  ordinary  mean- 
ing. So  whatever  of  light  is  thrown  upon  the  statute  by  the  language 
of  the  title,  indicates  an  exclusion  from  its  penal  provisions  of  all 
contracts  for  the  employment  of  ministers,  rectors,  and  pastors. 

Again,  another  guide  to  the  meaning  of  a  statute  is  found  in  the 
evil  which  it  is  designed  to  remedy;  and  for  this  the  court  properly 
looks  at  contemporaneous  events,  the  situation  as  it  existed,  and  as 
it  was  pressed  upon  the  attention  of  the  legislative  body.  (United 
States  vs.  Railroad  Company,  91  U.  S.  72,  79.)  The  situation  which 
called  for  this  statute  was  briefly  but  fully  stated  by  Mr.  Justice  Brown, 
when,  as  district  judge,  he  decided  the  case  of  United  States  vs.  Craig 
(28  Fed.  Rep.  795,  798):  "The  motives  and  history  of  the  act  are  mat- 
ters of  common  knowledge.  It  has  become  the  practice  for  large 
capitalists  in  this  country  to  contract  with  their  agents  abroad  for  the 
shipment  of  great  numbers  of  an  ignorant  and  servile  class  of  foreign 
laborers,  under  contracts,  by  which  the  employer  agreed,  upon  the 
one  hand,  to  prepay  their  passage,  while,  upon  the  other  hand,  the 
laborers  agreed  to  work  after  their  arrival  for  a  certain  time  at  a  low 
rate  of  wages.  The  effect  of  this  was  to  break  down  the  labor  market, 
and  to  reduce  other  laborers  engaged  in  like  occupations  to  the  level 
of  the  assisted  immigrant.  The  evil  finally  became  so  flagrant  that 
an  appeal  was  made  to  Congress  for  relief  by  the  passage  of  the  act 
in  question,  the  design  of  which  was  to  raise  the  standard  of  foreign 
immigrants,  and  to  discountenance  the  migration  of  those  who  had 
not  sufficient  means  in  their  own  hands,  or  those  of  their  friends,  to 
pay  their  passage." 

It  appears,  also,  from  the  petitions,  and  in  the  testimony  presented 
before  the  committees  of  Congress,  that  it  was  this  cheap,  unskilled 
labor  which  was  making  the  trouble,  and  the  influx  of  which  Congress 
sought  to  prevent.  It  was  never  suggested  that  we  had  in  this  coun- 
try a  surplus  of  brain  toilers,  and,  least  of  all,  that  the  market  for  the 
services  of  Christian  ministers  was  depressed  by  foreign  competition. 
Those  were  matters  to  which  the  attention  of  Congress,  or  of  the 
people,  was  not  directed.  So  far,  then,  as  the  evil  which  was  sought 
to  be  remedied  interprets  the  statute,  it  also  guides'to  an  exclusion 
of  this  contract  from  the  penalties  of  the  act. 

A  singular  circumstance,  throwing  light  upon  the  intent  of  Con- 
gress, is  found  in  this  extract  from  the  report  of  the  Senate  Committee 
on  Education  and  Labor,  recommending  the  passage  of  the  bill:  "The 
general  facts  and  considerations  which  induce  the  committee  to  rec- 
24 


372  THE    "CHRISTIAN    NATION"    DECISION. 

ommend  the  passage  of  this  bill  are  set  forth  in  the  report  of  the  Com- 
mittee of  the  House.  The  committee  report  the  bill  back  without 
amendment,  although  there  are  certain  features  thereof  which  might 
well  be  changed  or  modified,  in  the  hope  that  the  bill  may  not  fail  of 
passage  during  the  present  session.  Especially  would  the  committee 
have  otherwise  recommended  amendments,  substituting  for  the  ex- 
pression 'labor  and  service/  whenever  it  occurs  in  the  body  of  the 
bill,  the  words  'manual  labor'  or  'manual  service,'  as  sufficiently 
broad  to  accomplish  the  purposes  of  the  bill,  and  that  such  amend- 
ments would  remove  objections  which  a  sharp  and  perhaps  unfriendly 
criticism  may  urge  to  the  proposed  legislation.  The  committee, 
however,  believing  that  the  bill  in  its  present  form  will  be  construed 
as  including  only  those  whose  labor  or  service  is  manual  in  character, 
and  being  very  desirous  that  the  bill  become  a  law  before  the  adjourn- 
ment, have  reported  the  bill  without  change."  (6059  Congressional 
Record,  48th  Congress.)  And  referring  •  back  to  the  report  of  the 
Committee  of  the  House,  there  appears  this  language:  "It  seeks  to 
restrain  and  prohibit  the  immigration  or  importation  of  laborers  who 
would  have  never  seen  our  shores  but  for  the  inducements  and  allure- 
ments of  men  whose  only  object  is  to  obtain  labor  at  the  lowest  pos- 
sible rate,  regardless  of  the  social  and  material  well-being  of  our  own 
citizens,  and  regardless  of  the  evil  consequences  which  result  to 
American  laborers  from  such  immigration.  This  class  of  immigrants 
care  nothing  about  our  institutions,  and  in  many  instances  never  even 
heard  of  them.  They  are  men  whose  passage  is  paid  by  the  importers; 
they  come  here  under  contract  to  labor  for  a  certain  number  of  years. 
They  are  ignorant  of  our  social  condition,  and,  that  they  may  remain 
so,  they  are  isolated  and  prevented  from  coming  into  contact  with 
Americans.  They  are  generally  from  the  lowest  social  stratum,  and 
live  upon  the  coarsest  food  and  in  hovels  of  a  character  before  un- 
known to  American  workmen.  They,  as  a  rule,  do  not  become  citi- 
zens, and  are  certainly  not  a  desirable  acquisition  to  the  body  politic. 
The  inevitable  tendency  of  their  presence  among  us  is  to  degrade 
American  labor,  and  to  reduce  it  to  the  level  of  the  imported  pauper 
labor."  (Page  5359  Congressional  Record,  48th  Congress.) 

We  find,  therefore,  that  the  title  of  the  act,  the  evil  which  was 
intended  to  be  remedied,  the  circumstances  surrounding  the  appeal 
to  Congress,  the  reports  of  the  committee  of  each  house,  all  concur 
in  affirming  that  the  intent  of  Congress  was  simply  to  stay  the  influx 
of  this  cheap,  unskilled  labor. 


THE  "CHRISTIAN  NATION"   DECISION.  373 

But  beyond  all  these  matters  no  purpose  of  action  against  religion 
can  be  imputed  to  any  legislation,  State  or  national,  because  this  is  a 
religious  people.  This  is  historically  true.  From  the  discovery  of 
this  continent  to  the  present  hour  there  is  a  single  voice  making  this 
affirmation.  The  commission  to  Christopher  Columbus,  prior  to  his 
sail  westward,  is  from  "  Ferdinandjmd  Isabella,  by  the  grace  of  God, 
King  and  Queen  of  Castile,"  etc.,  and  recites  that  "it  is  hoped  that 
by  God's  assistance  some  of  the  continents  and  islands  in  the  ocean 
will  be  discovered,"  etc.  The  first  colonial  grant,  that  made  to  Sir 
Walter  Raleigh,  in  1584,  was  from  "Elizabeth,  by  the  grace  of  God, 
of  England,  Fraunce,  and  Ireland,  queene,  defender  of  the  faith/* 
etc.,  and  the  grant  authorizing  him  to  enact  statutes  for  the  govern- 
ment of  the  proposed  colony  provided  that  "they  be  not  against  the 
true  Christian  faith  no  we  professed  in  the  Church  of  England."  The 
first  charter  of  Virginia,  granted  by  King  James  I,  in  1606,  after  recit- 
ing the  application  of  certain  parties  for  a  charter,  commenced  the 
grant  in  these  words:  "We,  greatly  commending  and  graciously 
accepting  of,  their  Desires  for  the  Furtherance  of  so  noble  a  Work, 
which  may,  by  the  Providence  of  Almighty  God,  hereafter  tend  to 
the  Glory  of  his  Divine  Majesty,  in  propagating  of  Christian  religion 
to  such  People,  as  yet  live  in  Darkness  and  miserable  Ignorance  of 
the  true  Knowledge  and  Worship  of  God,  and  may  in  time  bring  the 
Infidels  and  Savages,  living  in  those  parts,  to  human  Civility,  and  to 
a  settled  and  quiet  Government;  DO,  by  these  our  Letters-Patents, 
graciously  accept  of,  and  agree  to,  their  humble  and  well-intended 
Desires." 

Language  of  similar  import  may  be  found  in  the  subsequent  char- 
ters of  that  colony,  from  the  same  king,  in  1609  and  161 1 ;  and  the 
same  is  true  of  the  various  charters  granted  to  the  other  colonies. 
In  language  'more  or  less  emphatic  is  the  establishment  of  the  Christian 
religion  declared  to  be  one  of  the  purposes  of  the  grant.  The  cele- 
brated compact  made  by  the  Pilgrims  in  the  Mayflower •,  1620,  recites: 
"Having  undertaken  for  the  Glory  of  God,  and  Advancement  of  the 
Christian  Faith,  and  the  Honour  of  our  King  and  Country,  a  Voyage 
to  plant  the  first  Colony  in  the  northern  Parts  of  Virginia;  Do  by 
these  Presents,  solemnly  and  mutually,  in  the  Presence  of  God  and 
one  another,  covenant  and  combine  ourselves  together  into  a  civil 
Body  Politick,  for  our  better  Ordering  and  Preservation,  and  Further- 
ance of  the  Ends  aforesaid."  •.*&•*• 

The  fundamental  orders  of  Connecticut,  under  which  a  provisional 


374  THE  "CHRISTIAN  NATION"   DECISION. 

government  was  instituted  in  1638-1639,  commence  with  this  declara- 
tion: "Forasmuch  as  it  hath  pleased  the  Almighty  God  by  the  wise 
disposition  of  his  diuyne  pruidence  so  to  Order  and  dispose  of  things 
that  we  the  Inhabitants  and  Residents  of  Windsor,  Hartford,  and 
Wethersfield  are  now  cohabiting,  and  dwelling  in  and  vppon  the 
River  of  Conectecotte  and  the  Lands  thereunto  adioyneing;  And  well 
knowing  where  a  people  are  gathered  togather  the  word  of  God 
requires  that  to  mayntayne  the  peace  and  vnion  of  such  a  people 
there  should  be  an  orderly  and  decent  Gouernment  established  accord- 
ing to  God,  to  order  and  dispose  of  the  affayres  of  the  people  at  all 
seasons  as  occation  shall  require;  doe  therefore  assotiate  andconioyne 
our  selues  to  be  as  one  Publike  State  or  Commonwelth;  and  doe,  for 
our  selues  and  our  Successors  and  such  as  shall  be  adioyned  to  vs 
att  any  tyme  hereafter,  enter  into  Combination  and  Confederation 
togather,  to  mayntayne  and  presearue  the  liberty  and  purity  of  the 
gospell  of  our  Lord  Jesus  wch  we  now  prfesse,  as  also  the  discipline 
of  the  Churches,  wch  according  to  the  truth  of  the  said  gospell  is  now 
practiced  amongst  vs." 

In  the  charter  of  privileges  granted  by  William  Penn  to  the  prov- 
ince of  Pennsylvania,  in  1701,  it  is  recited:  "Because  no  People  can 
be  truly  happy,  though  under  the  greatest  Enjoyment  of  Civil  Lib- 
erties, if  abridged  of  the  Freedom  of  their  Consciences,  as  to  their 
Religious  Profession  and  Worship;  And  Almighty  God  being  the 
only  Lord  of  Conscience,  Father  of  Lights  and  Spirits;  and  the  Author 
as  well  as  Object  of  all  divine  Knowledge,  Faith  and  Worship,  who 
only  doth  enlighten  the  Minds,  and  persuade  and  convince  the  Under- 
standings of  People,  I  do  hereby  grant  and  declare,"  etc. 

Coming  nearer  to  the  present  time,  the  Declaration  of  Independence 
recognizes  the  presence  of  the  divine  in  human  affairs  in  these  words: 
"We  hold  these  truths  to  be  self-evident,  that  all  men  are  created 
equal,  that  they  are  endowed  by  their  Creator  with  certain  unalien- 
able  Rights,  that  among  these  are  life,  liberty,  and  the  pursuit  of 
happiness."  "We,  therefore,  the  Representatives  of  the  United 
States  of  America,  in  General  Congress  assembled,  appealing  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions,  do, 
in  the  name  and  by  authority  of  the  good  people  of  these  Colonies, 
solemnly  publish  and  declare,"  etc.;  "And  for  the  support  of  this 
Declaration,  with  a  firm  reliance  on  the  Protection  of  Divine  Provi- 
dence, we  mutually  pledge  to  each  other  our  lives,  our  fortunes, 
and  our  sacred  honor." 


THE   "CHRISTIAN  NATION"   DECISION.  375 

If  we  examine  the  constitutions  of  the  various  States  we  find  in 
them  a  constant  recognition  of  religious  obligations.  Every  consti- 
tution of  every  one  of  the  forty-four  States  contains  language  which 
either  directly  or  by  clear  implication  recognizes  a  profound  rever- 
ence for  religion  and  an  assumption  that  its  influence  in  all  human 
affairs  is  essential  to  the  well-being  of  the  community.  This  recog- 
nition may  be  in  the  preamble,  such  as  is  found  in  the  constitution  of 
Illinois,  1870:  "We,  the  people  of  the  State  of  Illinois,  grateful  to 
Almighty  God  for  the  civil,  political,  and  religious  liberty  which  he 
hath  so  long  permitted  us  to  enjoy,  and  looking  to  him  for  a  blessing 
upon  our  endeavors  to  secure  and  transmit  the  same  unimpaired  to 
succeeding  generations,"  etc. 

It  may  be  only  in  the  familiar  requisition  that  all  officers  shall  take 
an  oath  closing  with  the  declaration  "  so  help  me  God."  It  maybe 
in  clauses  like  that  of  the  constitution  of  Indiana,  1816,  article  2, 
section  4:  "The  manner  of  administering  an  oath  or  affirmation  shall 
be  such  as  is  most  consistent  with  the  conscience  of  the  deponent, 
and  shall  be  esteemed  the  most  solemn  appeal  to  God."  Or  in  pro- 
visions such  as  are  found  in  articles  36  and  37  of  the  Declaration  of 
Rights  of  the  Constitution  of  Maryland,  1867:  "That,  as  it  is  the  duty 
of  every  man  to  worship  God  in  such  manner  as  he  thinks  most 
acceptable  to  him,  all  persons  are  equally  entitled  to  protection  in 
their  religious  liberty;  wherefore,  no  person  ought,  by  any  law,  to  be 
molested  in  his  person  or  .estate  on  account  of  his  religious  persuasion 
or  profession,  or  for  his  religious  practice,  unless,  under  the  color  of 
religion,  he  shall  disturb  the  good  order,  peace,  or  safety  of  the  State, 
or  shall  infringe  the  laws  of  morality,  or  injure  others  in  their  natural, 
civil,  or  religioiis  rights;  nor  ought  any  person  to  be  compelled  to 
frequent  or  maintain  or  contribute,  unless  on  contract,  to  maintain 
any  place  of  worship,  or  any  ministry;  nor  shall  any  person,  other- 
wise competent,  be  deemed  incompetent  as  a  witness  or  juror  on 
account  of  his  religious  belief,  provided,  he  believes  in  the  existence 
of  God,  and  that,  under  his  dispensation,  such  person  will  be  held 
morally  accountable  for  his  acts,  and  be  rewarded  or  punished  there- 
for, either  in  this  world  or  the  world  to  come;  that  no  religious  test 
ought  ever  to  be  required  as  a  qualification  for  any  office  of  profit  or 
trust  in  this  State,  other  than  a  declaration  of  belief  in  the  existence 
of  God;  nor  shall  the  Legislature  prescribe  any  other  oath  of  office 
than  the  oath  prescribed  by  this  constitution."  Or  like  that  in  arti- 
cles 2  and  3  of  part  ist  of  the  constitution  of  Massachusetts,  1780: 


376 

"  It  is  the  right  as  well  as  the  duty  of  all  men  in  society,  publicly  and 
at  stated  seasons,  to  worship  the  Supreme  Being,  the  great  Creator 
and  Preserver  of  the  universe.  .  .  .  As  the  happiness  ofapeople 
and  the  good  order  and  preservation  of  civil  government  essentially 
depend  upon  piety,  religion,  and  morality,  and  as  these  cannot  be 
generally  diffused  through  a  community  but  by  the  institution  of  the 
Public  worship  of  God  and  of  public  instructions  in  piety,  religion,  and 
morality,  therefore,  to  promote  their  happiness  and  to  secure  the 
good  order  and  preservation  of  their  government,  the  people  of  this 
commonwealth  have  a  right  to  invest  their  Legislature  with  power  to 
authorize  and  require,  and  the  Legislature  shall,  from  time  to  time, 
authorize  and  require  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic  or  religious  societies  to  make  suitable  provisions,  at  their 
own  expense,  for  the  institution  of  the  public  worship  of  God  and  for 
the  support  and  maintenance  of  public  Protestant  teachers  of  piety, 
religion,  and  morality  in  all  cases  where  such  provision  shall  not  be 
made  voluntarily."  Or  as  in  sections  5  and  14  of  article  7  of  the 
constitution  of  Mississippi,  1832:  " No  person  who  denies  the  being  of 
a  God,  or  a  future  state  of  rewards  and  punishments,  shall  hold  any 
office  in  the  civil  department  of  this  State.  .  .  .  Religion,  moral- 
ity, and  knowledge  being  necessary  to  good  government,  the  pres- 
ervation of  liberty,  and  the  happiness  of  mankind,  schools,  and  the 
means  of  education,  shall  forever  be  encouraged  in  this  State."  Or 
by  article  22  of  the  constitution  of  Delaware,  1776,  which  required 
all  officers,  besides  an  oath  of  allegiance,  to  make  and  subscribe  the 
following  declaratic  i:  "I,  A.  B.,  do  profess  faith  in  God  the-'Tather, 
and  in  Jesus  Christ  his  only  Son,  and  in  the  Holy  Ghost,  one  God, 
blessed  forevermore;  and  I  do  acknowledge  the  Holy  Scriptures  of 
the  Old  and  New  Testament  to  be  given  by  divine  inspiration." 

Even  the  Constitution  of  the  United  States,  which  is  supposed  to 
have  little  touch  upon  the  private  life  of  the  individual,  contains  in 
the  First  Amendment  a  declaration  common  to  the  constitutions  of 
all  the  States,  as  follows:  "Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exercise  thereof," 
etc.  And  also  provides  in  article  i,  section  7  (a  provision  common 
to  many  constitutions) ,  that  the  Executive  shall  have  ten  days  (Sun- 
days excepted)  within  which  to  determine  whether  he  will  approve  or 
veto  a  bill. 

There  is  no  dissonance  in  these  declarations.  There  is  a  -universal 
language  pervading  them  all,  having  one  meaning;  they  affirm  and 


THE  '  'CHRISTIAN  NATION"  DECISION.  377 

reaffirm  that  this  is  a  religious  nation.  These  are  not  individual  say- 
ings, declarations  of  private  persons;  they  are  organic  utterances; 
they  speak  the  voice  of  the  entire  people.  While,  because  of  a  general 
recognition  of  this  truth,  the  question  has  seldom  been  presented  to 
the  courts,  yet  we  find  that  in  Updegraph  vs.  The  Commonwealth 
(TI  Serg.  &  Rawle  394,  400),  it  was  decided  that  "Christianity,  gen- 
eral Christianity,  is,  and  always  has  been,  a  part  of  the  common  law 
of  Pennsylvania;  .  .  .  not  Christianity  with  an  established  church, 
and  tithes,  and  spiritual  courts,  but  Christianity  with  liberty  of  con-' 
science  to  all  men."  And  in  The  People  vs.  Ruggles  (8  Johns.  290, 
294,  295),  Chancellor  Kent,  the  great  commentator  on  American  law, 
speaking  as  Chief  Justice  of  the  Supreme  Court  of  New  York,  said: 
"  The  people  of  this  State,  in  common  with  the  people  of  this  country, 
profess  the  general  doctrines  of  Christianity  as  the  rule  of  their  faith 
and  practice,  and  to  scandalize  the  Author  of  these  doctrines  is  not 
only,  in  a  religious  point  of  view,  extremely  impious,  But,  even  in 
respect  to  the  obligations  due  to  society,  is  a  gross  violation  of  de- 
cency and  good  order.  .  .  .  The  free,  equal,  and  undisturbed 
enjoyment  of  religious  opinion,  whatever  it  may  be,  and  free  and 
decent  discussions  on  any  religious  subject,  is  granted  and  secured; 
but  to  revile,  with  malicious  and  blasphemous  contempt,  the  religion 
professed  by  almost  the  whole  community,  is  an  abuse  of  that  right. 
Nor  are  we  bound,  by  any  expressions  in  the  Constitution,  as  some 
have  strangely  supposed,  either  not  to  punish  at  all,  or  to  punish 
indiscriminately,  the  like  attacks  upon  the  religion  of  Mahomet  or  of 
the  Grand  Lama;  and  for  this  plain  reason,  the':  the  case  assumes 
that  we  are  a  Christian  people,  and  the  morality  of  the  country  is 
deeply  ingrafted  upon  Christianity,  and  not  upon  the  doctrines  or 
worship  of  those  impostors."  And  in  the  famous  case  of  Vidal  vs. 
Girard's  Executors  (2  How.  127,  198),  this  court,  while  sustaining  the 
will  of  Mr.  Girard,  with  its  provision  for  the  creation  of  a  college  into 
which  no  minister  should  be  permitted  to  enter,  observed:  "  It  is  also 
said,  and  truly,  that  the  Christian  religion  is  a  part  of  the  common 
law  of  Pennsylvania. ' ' 

If  we  pass  beyond  these  matters  to  a  view  of  American  life  as 
expressed  by  its  laws,  its  business,  its  customs,  and  its  society,  we 
find  everywhere  a  clear  recognition  of  the  same  truth.  Among  other 
matters  note  the  following:  "  The  form  of  oath  universally  prevailing, 
concluding  with  an  appeal  to  the  Almighty;  the  custom  of  opening 
sessions  of  all  deliberative  bodies  and  most  conventions  with  prayer; 


378  THE  "CHRISTIAN  NATION"   DECISION. 

the  prefatory  words  of  all  wills,  "  In  the  name  of  God,  amen;"  the 
laws  respecting  the  observance  of  the  Sabbath;  with  the  general  ces- 
sation of  all  secular  business,  and  the  closing  of  courts,  legislatures, 
and  other  similar  public  assemblies  on  that  day;  the  churches  and 
church  organizations  which  abound  in  every  city,  town,  and  hamlet; 
the  multitude  of  charitable  organizations  existing  everywhere  under 
Christian  auspices;  the  gigantic  missionary  associations,  with  general 
support,  and  aiming  to  establish  Christian  missions  in  every  quarter 
of  the  globe.  These,  and  many  other  matters  which  might  be  noticed, 
add  a  volume  of  unofficial  declarations  to  the  mass  of  organic  utter- 
ances that  this  is  a  Christian  nation.  In  the  face  of  all  these,  shall  it 
be  believed  that  a  Congress  of  the  United  States  intended  to  make  it 
a  misdemeanor  for  a  church  of  this  country  to  contract  for  the  services 
of  a  Christian  minister  residing  in  another  nation  ? 

Suppose  in  the  Congress  that  passed  this  act  some  member  had 
offered  a  bfll  which  in  terms  declared  that,  if  any  Roman  Catholic 
Church  in  this  country  should  contract  with  Cardinal  Manning  to  come 
to  this  country  and  enter  into  its  service  as  pastor  and  priest;  or  any 
Episcopal  Church  should  enter  into  a  like  contract  with  Canon  Farrar; 
or  any  Baptist  Church  should  make  similar  arrangements  with  Rev. 
Mr.  Spurgeon;  or  any  Jewish  synagogue  with  some  eminent  rabbi, 
such  contract  should  be  adjudged  unlawful  and  void,  and  the  church 
making  it  be  subject  to  prosecution  and  punishment,  can  it  be 
believed  that  it  would  have  received  a  minute  of  approving  thought  or 
/--  -  ote  ?  Yet  it  is  contended  that  such  was  in  effect  the  mean- 
ing of  this  statute.  The  construction  invoked  cannot  be  accepted  as 
correct.  It  is  a  case  where  there  was  presented  a  definite  evil,  in 
view  of  which  the  Legislature  used  general  terms  with  the  purpose  of 
reaching  a11  phases  of  that  evil,  and  thereafter,  unexpectedly,  it  is 
developed  that  the  general  language  thus  employed  is  broad  enough 
to  reach  cases  and  acts  which  the  whole  history  and  life  of  the  country 
affirm  could  not  have  been  intentionally  legislated  against.  It  is  the 
duty  of  the  courts,  under  those  circumstances,  to  say  that,  however 
broad  the  language  of  the  statute  may  be,  the  act,  although  within  the 
letter,  is  not  within  the  intention  of  the  Legislature,  and,  therefore, 
cannot  be  within  the  statute. 

The  judgment  will  be  reversed,  and  the  case  remanded  for  further 
proceedings  in  accordance  with  this  opinion. 

ri  rue  copy. 

/^ 

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